Citation Nr: 1338518 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-12 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 2006 to March 2007 and from May 2009 to March 2010. This matter is on appeal from the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Tinnitus has been diagnosed; the Veteran offered credible evidence of tinnitus since service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, tinnitus was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the service treatment records do not reflect the presence of tinnitus and the Veteran denied ringing in the ears in a January 2010 post-deployment medical history, he filed a claim for tinnitus in March 2010, the same month he was separated from service. At a November 2010 VA audiologic examination, he reported constant bilateral tinnitus during his deployment from 2009 to 2010, which he described as a "high pitch squealing." He reported excessive noise as a diesel mechanic during both activations and denied a civilian history of recreational or occupational noise exposure. In a July 2011 addendum, the VA audiologist opined that tinnitus was unrelated to service, as the Veteran denied tinnitus on the post-deployment health assessment. Further it was not attributable to hearing loss, as his hearing was normal for VA purposes. She further stated, that the currently-reported tinnitus could not be attributed to any known medical condition as he denied tinnitus post deployment. Notwithstanding the medical opinion, the Veteran's MOS as a wheeled vehicle mechanic has a "Highly Probable" probability of exposure to hazardous levels of noise under the guidance of VA Fast Letter 10-35 (Sept. 2, 2010). Therefore, in-service noise exposure is conceded. Next, while laypersons are not capable of opining on matters requiring medical knowledge, the Veteran has asserted that he has been experiencing tinnitus since service. His assertions are consistent with the nature of his service that included noise exposure by virtue of his MOS. The Board recognizes that the Veteran denied tinnitus in January 2010; however, shortly thereafter and within a month of separation, he endorsed the presence of tinnitus. His assertions within a month of separation are consistent with the history offered on VA examination in October 2010. The Board finds no specific reason to question the Veteran's veracity; thus, viewing the evidence in the light most favorable to the Veteran, the Board finds him credible regarding the presence of tinnitus in service. Indeed, VA decision makers have discretion to accept or reject pieces of evidence provided that sufficient reasons and bases are set forth explaining such actions. Moreover, tinnitus is unique in that it is a subjective condition that is given to lay observation. Thus, because the Veteran is competent, in essence, to identify tinnitus and because he has been found to be credible, the Board credits his assertions regarding the incurrence of tinnitus in service. The Board is aware that in July 2011, the VA examiner opined that tinnitus did not have its onset in service and was otherwise unrelated. That opinion is constitutes competent and credible medical evidence. As explained above, the Veteran's assertions regarding tinnitus are competent, and the Board has found him credible. Thus, there are equally weighted opinions for and against the claim. In such a situation, the Veteran must prevail. As such, service connection for tinnitus is granted. Finally, as provided for by the Veterans Claims Assistance Act, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for tinnitus is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs