Citation Nr: 1605949 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 14-22 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT Competent and credible evidence indicates the Veteran's tinnitus arose in service and has continued since. CONCLUSION OF LAW The requirements for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for tinnitus that he asserts began in service and has continued since. Specifically, he reports he was exposed to the noise of weapons fire, including machine guns and mortars, while serving as a combat medic in the Republic of Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board concedes the Veteran's in-service acoustic trauma, based on his consistent statements regarding exposure to weapons fire during service, as well as the information provided on his DD Form 214, which documents his receipt of a Combat Medical Badge. The Board also concedes the presence of a current disability, as the Veteran is competent to testify to observable symptoms such as ringing in his ears, and has done so credibly in this instance. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to identify tinnitus). Thus, the remaining question is whether the Veteran's current tinnitus is related to service. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. The Board finds that the Veteran's statements are sufficient to establish service connection in this instance. The Board acknowledges that a VA examiner provided a negative opinion on this issue in January 2014, characterizing the Veteran's tinnitus as a symptom of his hearing loss and noting "his history of occupational loud noise exposure." However, it appears that the examiner failed to consider the Veteran's competent and credible reports that his tinnitus began in service and continued thereafter in issuing that opinion. Furthermore, she did not explain what post-service noise exposure she considered loud, only noting generally in the history portion of the examination that the Veteran worked in electronics, installed satellite systems, worked as a maintenance supervisor, and drove a truck. As a result, the Board accords the opinion less probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (stating that an adequate VA examination considers the relevant history, provides a sufficiently detailed description of the disability, and provides a rationale to support the conclusions or opinions offered). In short, in light of the positive and negative evidence of record, to specifically include the Veteran's competent and credible reports of tinnitus that began in service, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus was incurred in service. See Fountain, 27 Vet. App. at 272. Accordingly, resolving all doubt in his favor, service connection is warranted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102 (2015). ORDER Service connection for tinnitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs