Citation Nr: 1340753 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-16 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 1961. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the RO in Denver, Colorado. 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. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 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, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In multiple written statements of record, the Veteran contends he experiences intermittent tinnitus due to acoustic trauma during active service. The Veteran's service treatment records are negative for complaints or treatment for tinnitus. Although the Veteran's DD Form 214 reflects that no code was assigned to the Veteran (0000), the Veteran competently and consistently testified to duties as a radio operator aboard a naval vessel for the duration of his active service. Service treatment records corroborate the Veteran's statements by demonstrating that the Veteran received treatment on the named naval vessel from January 1960 to April 1961. In a January 2009 VA audiological examination, the Veteran reported a history of noise exposure on a naval vessel based on his duties as a radioman, to include use of a headset that was often loud, especially when working the Morse code receiver. Additionally, the Veteran indicated that his duties on the ship placed him in close proximity to 5-inch guns and he was regularly exposed to the firing of those guns without hearing protection. The Veteran could not recall the exact onset of tinnitus but indicated it was noticeable over the past five years. He denied any occupational noise exposure and reported recreational noise exposure from hunting with hearing protection. The VA examiner diagnosed hearing loss and bilateral tinnitus and opined that the Veteran's tinnitus was not related to service because the Veteran indicated that it was noticeable for the past five years. In December 2009, the Veteran alleged that the January 2009 VA examiner misunderstood him when he stated that he did not know how long he had tinnitus but that it became more noticeable in the last five years. In a May 2013 video hearing before the Board, the Veteran elaborated that his work as a radio operator included using high frequency radios and Morse code equipment that stressed his ears. He also worked near guns that were fired for practice about 5 or 6 times per month for about 5 or 6 hours at a time. The Veteran explained that he reported tinnitus in the past but was told by doctors that there was nothing that could be done. He also indicated that he started noticing his tinnitus shortly after discharge and that it had worsened over the years. The Board finds the Veteran's statements concerning his in-service duties and the onset and continuity of tinnitus since service to be competent and credible. The Veteran consistently reported his in-service duties as a radio operator and the noise exposure due to working in close proximity to gun stations on a naval vessel. There is no evidence of record to suggest that the Veteran did not perform the stated duties during service. Therefore, the Board concedes that the Veteran experienced acoustic trauma in service. Additionally, the Veteran competently stated that tinnitus began soon after service and that he has intermittently experienced tinnitus ever since. Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay statements are competent evidence of a diagnosis if they describe symptoms that support a later diagnosis by a medical professional). The Veteran's written statements and lay testimony are internally consistent. Based on the above, the Board finds the Veteran's assertions of experiencing tinnitus since active duty service is credible and extremely probative evidence. The Board acknowledges that the opinion of the VA examiners is against the Veteran's claim. However, the Board finds that the January 2009 VA opinion of little probative value as the Veteran's credible lay statements of misunderstanding the examiner negate the only underlying rationale for the negative opinion. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran to determine service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs