Citation Nr: 1719783	
Decision Date: 06/05/17    Archive Date: 06/21/17

DOCKET NO.  13-18 493A	)	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

I. Cannaday, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Air Force from March 1970 to March 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. 


FINDING OF FACT

The Veteran's current tinnitus is at least as likely as not the result of an in-service event or injury.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may 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 general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. 
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).  

The Board finds that the evidence of record supports a grant of service connection for tinnitus.  First, there is evidence of a current disability.  The Veteran has indicated that he has tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).

Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service.  See 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1154(b); Shedden, 381 F.3d at 1167.  Specifically, the Veteran has reported that he was exposed to noise as an airplane mechanic.  See August 2010 VA Form 21-4138; February 2017 Informal Hearing presentation.  Indeed, the Veteran's DD Form 214 shows that he was an aircraft maintenance specialist.  

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus are related to service.  In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C.A. § 5107 (West 2014).  Although there is evidence against the claim, the Veteran has asserted that his tinnitus began right after discharge from the military.  See April 2010 VA examination.  The Veteran has consistently stated that his tinnitus began right after service and has continued since then.  The Board finds that the Veteran has competently and credibly reported a continuity of symptomatology of tinnitus within a year of service, and accords the Veteran's statements significant probative value.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir.1997) (it is the "duty [of] the Board to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record).

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for tinnitus is warranted.  See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs