Citation Nr: 1342896 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 13-18 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force from July 1962 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issue of new and material evidence to reopen the Veteran's claim of service connection for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. FINDING OF FACT Tinnitus is etiologically related to noise exposure during active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition of the claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim has been accomplished. 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, 1131; 38 C.F.R. § 3.303. Service connection may 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 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. 38 U.S.C.A. § 5107 (West 2002); 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. Analysis The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that while serving as an Air Policeman, he provided security on the flight line and was not afforded hearing protection. The Veteran's DD Form 214 confirms that his Air Force Specialty was Air Policeman. The Board has found nothing in the record that contradicts the Veteran's contentions concerning his in-service noise exposure. Therefore, the Board finds that the Veteran's reports of noise exposure during active service are both competent and credible. As such, the Board concedes the Veteran's acoustic trauma during active service. A review of the Veteran's service treatment records (STRs) shows that at the time of his induction examination in December 1967, the Veteran had no complaints of tinnitus. Further review of his STRs fails to show any complaints of symptoms of tinnitus at any time during his active service or at the time of his separation examination, although he did receive treatment several times for ear infections. However, in his March 2011 claim he said that he has had tinnitus ever since his service. In his October 2011 notice of disagreement (NOD), he further reported that he has experienced ringing in both of his ears since early in his active duty service. He said senior enlisted personnel told him tinnitus was part of the job and there was no available treatment, so he believed it would be useless to mention it to doctors. The Veteran also confirmed in his August 2013 substantive appeal (VA Form 646) that his tinnitus had existed since early in his service. The Board notes that the Veteran is competent to report when he first experienced symptoms of tinnitus and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds that based on his assertion that he experienced symptoms of tinnitus since service, the Veteran is credible in this regard. A review of the Veteran's post-service VA treatment records are silent for complaints of tinnitus, but a July 2013 private audiometric evaluation notes he has tinnitus. In September 2011, the Veteran was afforded a VA audiology evaluation. At that time, he reported in-service aircraft noise working on the flight line. He denied high level noise exposure in his civilian life. The examiner opined that the Veteran's tinnitus was less likely as not a result of noise trauma in service, as there was no evidence of tinnitus in his service medical records. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran is competent to identify tinnitus and his statements of such have been found credible, as they have been consistent. In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service. The Veteran has competently reported that he has experienced tinnitus since active service and that he has continued to experience such since his separation from active service, and these statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs