Citation Nr: 1338742 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-17 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) stems from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran testified at a December 2012 hearing before the undersigned. A transcript is of record. FINDING OF FACT The Veteran's tinnitus was incurred in combat during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims entitlement to service connection for tinnitus. In a July 2011 statement and at the December 2012 Board hearing, the Veteran related that ringing in his ears began during an ambush in Vietnam in which he was exposed to hazardous noise from exploding grenades and machine gun fire. He stated that he sustained a concussion at this time and "could hardly hear" when he woke up. He further testified that he had blood coming out of his ears, and has experienced ringing in his ears ever since that time. For the following reasons, the Board finds that service connection for tinnitus is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). The presence of tinnitus, which is defined as a ringing, buzzing, roaring, or clicking in the ears which is usually subjective, is established based on the Veteran's competent and credible statements. See Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994)); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's combat service in Vietnam is well established, as his service personnel records show that he was awarded the Army Commendation Medal with V device, the Combat Infantryman Badge, and the Purple Heart, among other citations. Indeed, the record shows that the Veteran sustained other wounds in the ambush described by him, including shell fragment wounds in his right shoulder, for which service connection has been established. Thus, his statement that he had ringing in the ears during combat operations is sufficient to establish that his tinnitus was incurred in service. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). Finally, the Veteran's credible assertion of ongoing ringing in the ears ever since service supports a relationship between his current tinnitus and the ringing in the ears he experienced during active service. A June 2011 VA examination report reflects an examiner's conclusion that an opinion could not be rendered without resort to mere speculation as to whether the Veteran's tinnitus was related to noise exposure in service. However, the examiner's inability to render a nexus opinion without resorting to speculation weighs neither against nor in favor of the claim. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Moreover, the examiner's cited reason for not being able to render an opinion was the absence of documentation of tinnitus in the service treatment records. The mere absence of contemporaneous documentation does not weigh against the credibility of the Veteran's statements or a relationship between his tinnitus and combat service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Although the Veteran denied tinnitus at a November 2010 VA audiological examination, the Veteran plausibly explained in the July 2011 statement that he believed hearing loss and ringing in the ears were part of the same condition and did not realize they were considered separate disorders. Accordingly, the evidence is at least in equipoise. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that all three Shedden elements are satisfied, and therefore service connection for tinnitus is established. See Shedden, 381 F.3d at 1166-67; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because this claim has been granted, any questions as to whether VA satisfied its duties to notify and assist are moot. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also 38 U.S.C.A. § 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs