Citation Nr: 1338913 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-29 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to December 2007. She had service in the Southwest Asia Theater of Operations in Iraq. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in Nashville, Tennessee that, in pertinent part, denied service connection for tinnitus. The Veteran was afforded a Travel Board hearing in November 2012 before the undersigned Veterans Law Judge sitting at Nashville, Tennessee. The transcript is of record. FINDING OF FACT There is competent lay and clinical evidence of record that tinnitus is reasonably related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim. The Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see also 38 U.S.C.A. § 5103(a)(2). As the Board is granting service connection for tinnitus, further assistance is unnecessary to aid the Veteran in substantiating the claim, and further discussion of the VCAA is therefore unnecessary. Pertinent Law and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). Factual Background and Legal Analysis The Veteran contends that she has tinnitus that was caused by noise exposure during active duty service. She has submitted statements and presented testimony to the effect that as a transportation specialist in Iraq, she had sustained noised exposure, to include from firing powerful weapons such as the M16 and M249, driving high-decibel level heavy duty vehicles for up to eight hours a day, high levels of noise and vibration from Chinook and Blackhawk helicopters, and from the rifle range and an explosion from a mortar round. The appellant testified that she developed ear pain with ringing of the ears after a night of gunfire in Iraq in 2005 that had persisted and continued to worsen. The Veteran's DD-214 reflects that she had a military occupational specialty in motor transportation operations and served in Iraq from August 2005 to July 2006 in an imminent danger pay area. The Veteran's service treatment records are silent for any complaints or treatment of ringing in the ears. She was afforded reference audiograms over the course of her service that did not refer to tinnitus. She denied tinnitus on a post deployment assessment in July 2006. However, the appellant complained of ear pain on occasion, to include on service discharge examination in September 2007. Post service, the Veteran underwent an audiology evaluation in February 2008 at the University of Tennessee and stated that she experienced a ringing sensation in her ears at least once a day for approximately five minutes. She related that she had constant earaches and a significant history of occupational noise exposure while serving in the military as a transportation specialist. VA clinical records dating from August 2009 reflect complaints of persistent and constant tinnitus that was noted to be chronic in December 2009. A claim of service connection for disabilities that included tinnitus was received in December 2009. The Veteran underwent a VA audiology examination in March 2010 and provided history of developing ringing of the ears when a mortar exploded near the exit control point resulting in an explosion that shook the ground. She also reported other types of noise exposure as cited above. The appellant denied significant occupational or recreational noise exposure. Following evaluation, the examiner referred to the post deployment questionnaire noting that the Veteran had responded negatively as to whether she had ringing of the ears. The examiner opined that in view of such, and the fact that hearing acuity was clinically normal, it was less likely than not that tinnitus was due to inservice noise exposure. Subsequent VA clinical records indicate that the appellant continued to report tinnitus. In the instant case, the Board finds that the Veteran's military duties likely presume significant noise exposure reasonably consistent with the circumstances of her service. See 38 U.S.C.A. § 1154(a). However, this does not by itself enable a grant of service connection. Rather, the evidence must demonstrate current disability that is related to disease or injury in service. After reviewing the evidence in its entirety, the Board concludes that service connection tinnitus is reasonably warranted. In this case, the evidence shows a current diagnosis of tinnitus. The Veteran is competent to assert the occurrence of in-service injury and symptoms. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While there is no objective evidence to support a specific incident of acoustic trauma in service resulting in ringing of the ears, as noted previously, noise exposure is consistent with the circumstances of service. The Board accepts the Veteran's statements as competent and credible as to her having been exposed to excessive noise in the military with resulting ringing in the ears. The Board has considered the findings and negative opinion provided on VA audiology evaluation in March 2010 and point out that the Veteran remained in service almost a year and a half after her deployment and complaints of ear pain are documented during that time frame. There is both evidence for and against the claim. However, after review of the record, the Board finds that evidence is in relative equipoise, and that a finding of tinnitus related to service may be conceded. Therefore, based on the lay and clinical evidence of record, the benefit of the doubt is thus resolved in favor of the Veteran in granting service connection for tinnitus. 38 U.S.C.A. § 5107. ORDER Service connection for tinnitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs