Citation Nr: 1338966 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-27 176A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the claims files currently resides with the St. Paul, Minnesota RO. FINDINGS OF FACT 1. The Veteran served in combat. 2. It is reasonably shown that the Veteran has tinnitus that became manifest in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, inasmuch as the benefit sought is being granted,; any notice defect or duty to assist failure is harmless. Legal Criteria, Factual background, and Analysis All of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." The Court has also held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's DD Form 214 reflects his military occupational specialty (MOS) was medical specialist, and that he was awarded a Combat Medical Badge. The record shows that the Veteran was a combat medic in Operation Just Cause while serving in Panama. His service treatment records (STRs) are silent for complaints, treatment, or diagnosis related to tinnitus. On December 2011 VA audiological evaluation, the Veteran reported unilateral tinnitus to the left ear and "[t]he onset became noticeable about two weeks after returning from Panama in 1990." He described the tinnitus as "ringing like on the hearing test," mostly noticeable in quiet places (not during the day while working or while there is ambient room noise). He related that he was a combat medic, was deployed to Panama, and hearing protection was available. He further recalled that expolsives blew the eastern wall of Noriega's compound and, although hearing protection was worn during the mission, his left ear was exposed to a lot of noise. The Veteran reported encountering "multiple, multiple, multiple explosions." He recalled that he wore hearing protection during his stateside service while working the motor pool and driving trucks. The Veteran denied a history of civilian occupational and recreational noise exposure and attributed his tinnitus to his tenure in the military and more specifically to his deployment in Panama. The examiner opined that the Veteran's tinnitus is less likely than not related to military service because he did not report tinnitus in service or while filing claims for other conditions. In a June 2012 addendum to the December 2011 opinion, the examiner explained that to "support the claim of tinnitus due to military noise exposure there needs to be documentation of acoustic trauma or a permanent threshold shift" and, although there was a slight shift on the 1990 results between 500 and 6000 Hertz bilaterally, this shift had resolved at the time of the December 2011 examination. The examiner noted that this was "documentation that the excessive noise" to which the Veteran was exposed in service was not permanently damaging to his ears or structures. The examiner again noted that the Veteran did not report tinnitus in service. The addendum opinion noted numerous alternative causes for the tinnitus "to include certain medications, stress, anxiety, nicotine, sodium, excess caffeine, etc." It is not in dispute that the Veteran has tinnitus as tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). His lay statements, standing alone, constitute sufficient evidence to establish presence of a current tinnitus disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because he served as a combat medic (and was awarded a Combat Medical Badge), it is also not in dispute that he was exposed to substantial noise trauma in service. What he must still show to substantiate his claim is that the tinnitus is related to his service/noise trauma therein. One method of establishing service connection is by showing that the disability for which service connection is sought became manifest during service, and has persisted since. The Veteran alleges that such is the case with his tinnitus, as he first noted it in service (about two weeks after returning from Panama), and it has persisted postservice. Because the service records do not show tinnitus, the determination rests on the Veteran's credibility. Given that he is entitled to consideration of his claim under the relaxed standards afforded under 38 U.S.C.A. § 1154(b), the Board finds no reason to question the Veteran's credibility in this matter. The Board notes that the conclusion of the December 2011 VA examiner (and the June 2012 addendum opinion) that the Veteran's tinnitus is less likely as not caused by or a result of noise exposure while in service, does not preclude a finding that the Veteran's account of having tinnitus in service and continuity of such complaints since is credible. Accordingly, the Board finds that the evidence is at least in equipoise regarding the allegation that the Veteran first noted tinnitus in service (and has had it since). Accordingly, service connection for tinnitus is warranted. See 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs