Citation Nr: 1752934	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-04 012	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel







INTRODUCTION

The Veteran served on active duty from March 1987 to March 1990. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran elected to have an informal conference in lieu of his requested decision review officer (DRO) formal hearing at the RO; an informal conference report is in the record.

Although the Veteran originally appealed his claims of entitlement to service connection for bilateral hearing loss and an abdominal scar (also claimed as an "abdominal wall") in his January 2013 notice of disagreement, he did not appeal them on his February 2014 substantive appeal (VA Form 9). Accordingly, these issues are not before the Board.

The Veteran did not identify whether he would like a Board hearing on his February 2014 VA Form 9. However, the Board will proceed with adjudication because the claim is being granted and there is thus no prejudice to the Veteran in proceeding.


FINDING OF FACT

It is reasonably shown that the Veteran's tinnitus began in service and has persisted since that time.


CONCLUSION OF LAW

Service connection for tinnitus is warranted. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of notice and assistance requirements on this matter. Any notice or duty to assist omission is harmless.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131, 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Certain chronic diseases (such as tinnitus, as an organic disease of the nervous system) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § 3.307, 3.309(a). Service connection may also be established by showing continuity of symptoms after discharge. 38 C.F.R. § 3.303(b).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's DD Form 214 reflects that he was a military policeman. VA's Duty Military Occupational Specialty (MOS) Noise Exposure Listing reflects that this MOS has a moderate probability of noise exposure.  M21-1MR, III.iv.4.B.4.e. Additionally, the Veteran's DD Form 214 reflects that he received several marksmanship badges.  
The Veteran reported that his recurrent tinnitus began in either 1988 or 1990 [both dates being during or within one year of service] and that he had noise exposure during service as a military firing range safety officer and instructor. See November 2011 and December 2013 VA examinations. While obtaining VA treatment, the Veteran also reported that his tinnitus began in service. See February 2014 VA treatment records. 

Negative VA examinations and opinions of record are assigned little probative weight because the examiners either failed to opine on a direct relationship between the Veteran's tinnitus and his military service or, in the case of the April 2015 VA examiner, failed to consider the Veteran's lay statements regarding tinnitus symptoms continuing since service. 

Resolving reasonable doubt in the Veteran's favor, his competent and credible statements are sufficient to establish that his tinnitus began in service and has persisted since that time. As a result, service connection is warranted. 


ORDER

Service connection for tinnitus is granted.



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs