Citation Nr: 1615394	
Decision Date: 04/15/16    Archive Date: 04/26/16

DOCKET NO.  09-42 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Daniel Bassett, Associate Counsel






INTRODUCTION

The Veteran served on active duty from May 1968 to August 1969.  The Veteran also had a period of active duty for training from April 1967 to September 1967.

This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

In May 2014, the Board remanded the case to the RO for further development and adjudicative action.


FINDING OF FACT

Tinnitus has been shown to be causally or etiologically related to the Veteran's service. 


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the claim for entitlement to service connection for tinnitus on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Some chronic diseases, including organic diseases of the nervous system such as tinnitus, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015); Fountain v. McDonald, 27 Vet. App. 258 (2015).

The Board concludes that service connection for tinnitus is warranted.  The Veteran asserts that he was exposed to loud noises due to rock blasting and helicopters flying overhead.  The Board notes that service connection has been established for posttraumatic stress disorder and that exposure of the Veteran to acoustic trauma of small arms fire and incoming mortar rounds has been conceded by VA.  

The Veteran is competent to state that he has ringing in his ears, or tinnitus.  The Veteran reported that onset of his tinnitus was in service when he was exposed to daily explosions from the rock quarry.  The Board has no reason to doubt the Veteran's report that he has experienced tinnitus since service.  Moreover, the Veteran currently experiences tinnitus as detailed in the August 2008 and July 2014 VA examination reports and his competent statements.  Thus, the in-service element (noise exposure) and current disability element (tinnitus) have been met.

The Board observes that the August 2008 and July 2014 VA examiners concluded that it was less likely than not that the Veteran's tinnitus was the result of military noise exposure, in part because the service treatment records (STRs) are negative for reports or complaints of hearing loss and tinnitus.  However, it does not appear that either VA examiner considered the Veteran's competent and credible reports that he began experiencing tinnitus during service, and has experienced tinnitus ever since service.  The absence of complaints of tinnitus recorded in the STRs, in and of itself, is not a sufficient basis on which to base an opinion. 

As noted previously, tinnitus is considered one of the chronic diseases listed in 38 C.F.R. § 3.309(a), allowing the claim to be established based on continuity of symptomatology.  See Fountain, 27 Vet. App. at 258; Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. 2013).  Therefore, consistent with 38 C.F.R. § 3.303(b), the Veteran's account of the onset and frequency of his tinnitus symptoms satisfies the third element of service connection by demonstrating a continuity of symptomatology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107(b); 3.102.


ORDER

Entitlement to service connection for tinnitus is granted. 




____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs