Citation Nr: 1342848 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-37 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from January 1973 to November 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes there are additional VA treatment records available in Virtual VA which have not yet been reviewed by the RO. However, the Board finds these records are not relevant to the question of service connection for tinnitus. Therefore the Board finds appellate consideration may proceed without any prejudice to the Veteran. See 38 C.F.R. 20.1304(c). FINDING OF FACT The evidence establishes the Veteran's current bilateral tinnitus was caused by his active service. CONCLUSION OF LAW The 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 The Veteran is seeking service connection for tinnitus. As the claim is granted, only a limited amount of relevant evidence will be discussed. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). As a threshold matter the Board concedes the Board was exposed to very loud noise during his military service. The Veteran served as a mechanical equipment repairman onboard naval vessels, and stated during these duties he was exposed to "hazardous noise" including weapons and engine room noise. 38 U.S.C.A. § 1154(a). The noise is considerable. Therefore in order to establish service connection the Veteran's military noise exposure must cause tinnitus. Service treatment records were reviewed and do not reflect the Veteran made any complaint of or sought any treatment for any symptoms of tinnitus during his active service. In August 2009 the Veteran was provided with a VA examination. The Veteran reported his exposure to loud noises during military, such as gunfire and engine room noises. The examiner indicated the Veteran did not have occupational or recreational noise exposure after his active service. The Veteran described he currently experienced a constant ringing in both ears which began after his active service. The examiner opined the Veteran had a diagnosis of tinnitus in both ears. The examiner was also asked to provide an opinion if the Veteran's tinnitus was as likely as not related to his active service, however the examiner instead stated "In view of the slight degree of reduction in hearing, I cannot resolve this issue without resorting to mere speculation." Therefore the Board finds this examination did not provide an opinion regarding any nexus of the Veteran's currently diagnosed tinnitus to his military noise exposure. Throughout the period on appeal the Veteran has consistently related his current tinnitus to his noise exposure during military service. The Court has specifically determined that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore the Board finds the Veteran's consistent lay statements provide probative evidence in support of his claim. Based on the foregoing the medical evidence establishes the Veteran currently has bilateral tinnitus. Although service treatment records do not reflect the Veteran complained of tinnitus during his active service, the Veteran's lay statements during the course of this appeal have consistently related his currently diagnosed tinnitus to his military noise exposure. The VA examination did not provide an adequate nexus opinion regarding the Veteran's tinnitus. Therefore the Board finds the evidence for and against the Veteran's claim is at the very least in relative equipoise, and reasonable doubt will therefore be resolved in his favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly his claim for service connection for tinnitus is granted. ORDER Service connection is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs