Citation Nr: 1538177	
Decision Date: 09/08/15    Archive Date: 09/18/15

DOCKET NO.  11-05 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel







INTRODUCTION

The Veteran served on active duty from July 1966 to June 1968.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). 


FINDING OF FACT

The Veteran's current tinnitus cannot be reasonably disassociated with his active duty service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5107A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for disability resulting from an injury or disease incurred in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The Veteran contends that his current tinnitus began during active service; specifically, he asserts that he was exposed to acoustic trauma while serving in the Republic of Vietnam over a period of six months, in 1967 and 1968.  The Veteran stated that he was exposed to artillery noise while serving as a gunner and a rifleman.  He also indicated that he was exposed to in-flight noise, as he participated in 25 helicopter assaults, which landed in hot zones and engaged the enemy.  

Service treatment records are negative for complaints, treatment, or a diagnosis of tinnitus.  The Veteran's Form DD 214 shows a military occupational specialty of a light weapons infantryman.  

Service personnel records demonstrate that the Veteran is the recipient of several awards, including the Combat Infantryman Badge, Vietnam Service Medal, and the Bronze Service Star with Valor Device.  These records also demonstrate that the Veteran had active service in Vietnam for over six months during the Vietnam War.  

Post-service records include the report of a March 2009 private audiological examination.  The examiner noted the Veteran's history of military noise exposure in Vietnam, to include the frequent firing of M-16 rifles.  Upon examination, the examiner found that the Veteran's current tinnitus and hearing loss were "more likely than not" affected by his inservice noise exposure.  

The report of a November 2009 VA examination indicates that the Veteran's acoustic trauma was conceded, as he reported that he was exposed to aircraft noise and combat noise, to include machine guns and mortars during service.  Upon examination, the examiner diagnosed constant tinnitus.  The examiner noted that the Veteran's hearing was normal upon entry into service demonstrated by the whisper voice test.  The examiner also noted that the Veteran was not provided a hearing test upon separation from service in 1968.  The examiner found that the Veteran's current hearing loss was due to service, noting, that there was not another plausible etiology such as intercurrent injuries, illnesses, or occupational noise exposure.  The examiner indicated that the onset of the Veteran's current tinnitus was too remote in time to be due to military noise exposure.  In this regard, the examiner noted that the Veteran reported that his tinnitus began a year and a half ago.  The examiner concluded that it was "less likely" that the tinnitus was related to the same etiology as the hearing loss.  

Subsequent VA outpatient treatment records dated in November 2009 note the Veteran's report of constant tinnitus.  

The Board finds the aforementioned VA opinions inadequate for adjudication purposes.  The VA examiner failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure and intermittent tinnitus since such time.  Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002).  In addition, the VA examiner determined that the Veteran's current hearing loss was due to his in-service noise exposure because there was no other plausible etiology such as intercurrent injuries, illnesses, or occupational noise exposure.  

Although the private examiner did not review the service and post service medical records, the Veteran's history of noise exposure in service is consistent with serving as an infantryman, and his statements as to the onset of his tinnitus is competent and credible evidence.  Tinnitus is subjective, which lay evidence is competent to describe, to include the time of onset.  In addition, the Veteran has presented credible written statements regarding his in-service incurrence of noise exposure and tinnitus.  Accordingly, service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is granted. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs