Citation Nr: 1340374 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-19 289 ) 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: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The Veteran's tinnitus was caused by his active service, to include noise exposure therein. CONCLUSION OF LAW Criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, lay evidence may suffice to establish the manifestations of a chronic condition during service, or within a presumptive period; and, when a condition is not chronic and there is no medical evidence of a causal nexus, lay testimony or medical evidence may establish continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). In January 2011, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss disability as due to noise exposure sustained during active service. Based on this claim, the RO inferred a claim for entitlement to service connection for tinnitus, and sent the Veteran notice as to both bilateral hearing loss disability and tinnitus. A review of the Veteran's DD Form 214 shows that during his active service, the Veteran's military occupational specialty (MOS) was a jet engine mechanic and the Board notes that VA has already conceded that the Veteran had military noise exposure in granting service connection for bilateral hearing loss disability. The Veteran's inferred claim for tinnitus was denied; however, as it was found that the evidence of record weighed against the claim. Specifically, the Veteran's service treatment records do not show any diagnosis or treatment for tinnitus during active service and on April 2011 VA examination, the Veteran denied any current complaints of tinnitus. However, having reviewed the evidence of record, the Board concludes that service connection is in fact warranted for tinnitus. At the Veteran's March 2013 Board hearing, the Veteran testified that during his April 2011 VA examination, he was asked by the examiner whether he experienced "ringing in his ears," to which he responded in the negative. He further testified that he was unaware at the time of his examination that "ringing in the ears" was a symptom of tinnitus. He testified that he experienced symptoms of a "high pitched tone" in his hears, not a ringing, and that following his VA examination, he was treated by a private physician who explained to him that his description of a "high-pitched tone" was also tinnitus. The Veteran went on to testify that he did not specifically claim entitlement to service connection for tinnitus in his January 2011 claim because he was unaware that the high pitched tone in his ears, which had been present and constant since active service, was a disability separate from his bilateral hearing loss disability. As noted, the Veteran is considered competent to report symptoms which he experiences such as a constant high pitched tone in his ears. Given that the Veteran's statements are found to be competent, the Board must then assess the credibility of the statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the Veteran denied any current symptoms of tinnitus at his April 2011 VA examination, the Board concludes that the statements made at his Board hearing, as to his confusion regarding the examiner's question about "ringing" in the ears, are credible. The Veteran's statements are the most relevant evidence in this matter. Therefore, resolving any reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection have been met, and the Veteran's claim is granted. In closing, in view of the fact that the full benefit sought by the Veteran as to his claim for service connection for tinnitus is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations because there is no detriment to the Veteran as a result of any VCAA deficiency. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs