Citation Nr: 1340382 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 13-24 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Willie Spruill, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDING OF FACT Tinnitus is etiologically related to the Veteran's active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim for service connection. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran contends that service connection is warranted for tinnitus because it originated in service as a result of noise exposure and has continued ever since. The Veteran's service treatment records (STRs) are negative for evidence of tinnitus. In December 2010, the Veteran filed a formal claim for compensation for tinnitus. He was afforded a VA audiological examination in response to the claim in March 2011. The Veteran reportedly gave a history of noise exposure in the Navy coincident to his duties as undesignated seaman. He reported that his duties included chipping and grinding paint and that he was in the vicinity of steam turbines and diesel generators while aboard ship. He denied occupational and recreational noise exposure, except for two months of working in a plastic molding factory without hearing protection. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of in-service noise exposure. It was noted that this was based on the absence of evidence that the Veteran experienced tinnitus during service or shortly thereafter and the Veteran's report of first noticing tinnitus when he submitted his claim in December 2010. In September 2011, the Veteran alleged that there was miscommunication between the March 2011 VA examiner and the Veteran regarding the onset of tinnitus. The Veteran asserted that he has experienced ringing in his ears in service and thereafter but did not identify it as tinnitus until he filed his claim. Specifically, the Veteran alleged that he assumed ringing in his ears "was a regular thing, and that nothing could be done about it." When asked by a veterans service officer if he had ringing or noises in his ear, he was told that these symptoms were not normal and he proceeded with filing the claim herein. The Board has found the Veteran's statements concerning the onset of tinnitus in service and its continuing since service to be competent and credible. Consistently throughout this claim and appeal, the Veteran has stated that he has experienced tinnitus ever since service and has sufficiently explained discrepancies found in the March 2011 VA examination report. In addition, the Veteran's DD-214 list his MOS as radio frequency equipment operator and the Veteran has provided credible statements concerning his in-service noise exposure. The RO has conceded the Veteran's in-service noise exposure and the Board does as well. The Board acknowledges that the opinion of the VA examiner is against the Veteran's claim. However, the Board finds that the March 2011 opinion is of little probative value as the Veteran's credible lay statements of miscommunication with the examiner negate the only underlying rationale for the negative opinion. In sum, the Board has determined that the evidence supporting the claim is at least in equipoise with that against the claim. Accordingly, entitlement to service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs