Citation Nr: 1751362 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-16 687 ) 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1956 to October 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed tinnitus had its onset in service and is related to his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic disabilities (including tinnitus in conjunction with acoustic trauma) are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding tinnitus is an organic disease of the nervous system where there is acoustic trauma). 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. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed tinnitus (see Charles v. Principi, 16 Vet. App. 370 (2002); July 2012 VA audiological examination) was caused by his acknowledged in-service exposure to excessive noise from artillery. The record contains a February 2013 VA opinion that the Veteran's tinnitus is not related to his in-service exposure to artillery noise. The Board notes, however, that the rationale provided by the 2013 examiner was largely focused on the Veteran's post-service denials of tinnitus. However, at the August 2017 Board hearing, the Veteran credibly reported that he did not know what tinnitus when asked at those times and had in fact been experiencing buzzing and ringing of the ears since his military service. In this regard, the Board finds the Veteran's reports of the onset of his current tinnitus in service and continuation of such to be competent and credible as they have been consistent throughout the pendency of his claim. Specifically, in his 2011 claim for service connection, the Veteran stated that his tinnitus had its onset when he was a machine gunner in service. Additionally, during a July 2012 examination, the Veteran reported his tinnitus had been present for what "seems like forever[.]" Finally, at the August 2017 hearing, he reported his tinnitus had its onset in 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); see also Charles, supra. Furthermore, 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. Consequently, the Board finds that, based on the Veteran's competent and credible reports of tinnitus in and since service, such disorder had its onset in service. Furthermore, the record contains an August 2017 VA opinion and an August 2017 private opinion that relate the Veteran's tinnitus to his in-service acoustic trauma. Therefore, based on the foregoing, the Board resolves all doubt in the Veteran's favor and finds his currently diagnosed tinnitus had its onset in service and is related to his in-service noise exposure. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs