Citation Nr: 1751629 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-05 599 ) 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran served on active duty with the Navy from March 1980 to March 1989. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied entitlement to service connection for tinnitus. In December 2016, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the record. FINDINGS OF FACT 1. The Veteran experienced acoustic trauma in service and experienced symptoms of tinnitus since service separation. 2. Tinnitus is etiologically related to service. CONCLUSION OF LAW Resolving all benefit of the doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus as an organic disease of the nervous system, service connection will be established if the chronic disease manifested in service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (noting that VA has characterized sensorineural hearing loss as an organic disease of the nervous system, and holding that tinnitus also qualifies as an organic disease of the nervous system, at a minimum when there is evidence of acoustic trauma). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the continuity of symptoms. Fountain, 27 Vet. App. at 263-64. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system, including hearing loss and tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d) (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that tinnitus is related to exposure to acoustic trauma experienced during his duties as a Boatswain's Mate while restoring the U.S.S. Kansas City. The Veteran contends that tinnitus has been present since his separation from service. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds, resolving all reasonable doubt in the Veteran's favor, that tinnitus was incurred in service. The Board finds that the Veteran experienced acoustic trauma in service. The Veteran's DD Form 214 reflects a Military Occupational Specialty (MOS) of "Boatswain's Mate." The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS of "Boatswains Mate" have a high probability of exposure to hazardous noise. Thus, the Board finds that the Veteran had hazardous noise exposure in service related to his duty as a Boatswain's Mate. Additionally, the Veteran is competent to describe noise exposure in service, and the Board finds that his December 2016 statement, describing noise exposure from participating in the stripping of the U.S.S. Kansas City to bare metal while in dry dock in the spring of 1980, is credible. Such exposure was also reported during the course of an October 2010 VA audiology examination, where the Veteran indicated he worked using pneumatic tools, chipping hammers, and needle guns to strip paint and rust off Navy ships for restoration. The Board finds that the Veteran did not have occupational or recreational noise exposure after service. During the October 2010 VA audiology examination, the Veteran reported that he worked in a cleaning and janitorial job after service, and additionally worked as a cell phone office manager, a lawn sprinkler repairman, and was currently working as a nurse at a local VA hospital. He also reported recreational activities with his church, such as kayaking and some softball, during a December 2016 Travel Board hearing. The Veteran reported during October 2010 and January 2011 VA audiological examinations, and during a December 2016 Travel Board hearing, that tinnitus symptoms had been present since service. The Board finds that the Veteran's statements are credible, and his report of experiencing tinnitus symptoms is consistent with the Board's finding of exposure to acoustic trauma in service. While the January 2011 VA examiner opined that tinnitus was less likely as not caused by or a result of military noise exposure, stating that there was no service treatment record evidence of hearing loss or tinnitus, she did not adequately address whether in-service acoustic trauma nonetheless contributed to the Veteran's current tinnitus, and the Board finds that the Veteran has credibly identified the lack of post-service occupational and recreational noise exposure. Additionally, while the VA examiner stated there were no dates or specific circumstances for tinnitus onset during military service by the Veteran, during the October 2010 VA audiological examination, the Veteran described in-service industrial noise exposure while restoring ships in the early 1980s. Additionally, the Veteran had submitted a December 2016 statement, reporting that he had been exposed to loud, mechanical noise while restoring the U.S.S. Kansas City in the spring of 1980. Accordingly, the Board finds that the VA opinion was not based on a full and accurate factual background with regard to the Veteran's level of in-service noise exposure. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board finds that the Veteran is competent and credible to identify hazardous noise exposure in service, and to identify tinnitus symptoms present since service separation, and his self-reports regarding the onset of tinnitus have been consistent. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for tinnitus is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs