Citation Nr: 1340370 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-35 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. In February 2013, the Veteran testified at a videoconference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. In addition to the paper claims file, there is a paperless, electronic claims file associated with the claim. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The claim for service connection for hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The evidence of record is in equipoise as to whether the Veteran's tinnitus was incurred in service. CONCLUSION OF LAW The requirements for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the Board's favorable disposition to grant the claim for service connection for tinnitus, the Board finds that no discussion of VCAA compliance is necessary at this time. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he currently suffers from tinnitus that was incurred in service. Specifically, he reported military noise exposure due to artillery fire and mortar explosions while stationed in Vietnam. In statements and at a hearing in February 2013, the Veteran asserted that that he initially experienced ringing in service, and it continued intermittently throughout the years. However, he was unaware of what tinnitus was or what caused it until 1990 when he complained of ringing in his ears and was informed by his physician that his complaints were consistent with tinnitus. The RO conceded hazardous noise exposure in service. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's tinnitus arose in service. The service treatment records contain a November 1971 separation examination, which shows a result of 15/15 on a spoken voice hearing testing and no abnormalities of the Veteran's ears or drums. Additionally, the Veteran denied a history of hearing loss or ear, nose or throat trouble on separation from service. The Veteran underwent a VA audiological examination in October 2010. The examiner noted constant tinnitus having onset in 1990 with no precipitating event. The Veteran reported a history of military noise exposure from small arms fire. He also reported that he was riding in a truck that hit a landmine losing consciousness. After service he was employed in the private sector as a field engineer and worked in an engineering lab. He denied a history of occupational or recreational noise exposure. The examiner diagnosed sensorineural hearing loss and constant tinnitus. She noted that the service treatment records did not document hearing loss, and on separation from service the Veteran's hearing was within normal limits. The examiner opined that the Veteran's tinnitus was less likely than not caused by or the result of noise exposure in the military because the service treatment records failed to document hearing changes due to noise on discharge from service, and more likely the Veteran's tinnitus shared the same etiology as that which caused his hearing loss, which she determined was not service-related. The Veteran is competent to state the he has had ringing in his ears and the onset of this because ringing in the ears is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself). Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it. Accordingly, lay testimony is competent to establish the presence and onset of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Here, although there was no documentation of tinnitus in service, the Veteran is competent to testify that he first experienced tinnitus during service. Significantly, the RO conceded military hazardous noise exposure as consistent with the circumstances of the Veteran's service and there is no evidence of acoustic trauma outside of military service. Moreover, the Board finds the Veteran's testimony that his tinnitus began during service and his explanation as to why he responded to the VA examiner that his tinnitus began in 1990 to be reasonably credible. The Board acknowledges that the VA examiner in October 2010 opined that the Veteran's tinnitus was less likely than not caused by or the result of noise exposure in the military because the Veteran did not report onset of hearing problems in service and tinnitus likely shared the same etiology as hearing loss, which the examiner concluded was not service-related. However, the examiner based the opinion in part on the fact that the service treatment records failed to document hearing problems and tinnitus. In this regard, in statements and testimony the Veteran has consistently and credibly explained that he experienced ringing in his ears following military noise exposure, however, he did not recognize his symptoms as a disability until 1990 when his physician informed him about tinnitus. Consequently, the Board finds that it cannot give more probative weight to the negative evidence versus the Veteran's statement as to an onset of tinnitus in service and a continuity of symptoms since service. Therefore, in light of the foregoing, the evidence is in relative equipoise as to whether the Veteran's tinnitus is related to military service. Affording the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs