Citation Nr: 1753583	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  14-18 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1967 to August 1969.  

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In May 2017, the Veteran testified before the undersigned at a video-conference Board hearing.  A transcript of the hearing is associated with the claims file.

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


FINDINGS 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. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

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. § 1154(b); Shedden, 381 F.3d at 1167. Specifically, the Veteran stated that, he was exposed to noise from helicopters, as well as gun and artillery fire.  See May 2017 Board Hearing Transcript at 4.  Additionally, the Board notes that the Veteran's DD Form 214 reflects that the Veteran was an infantry indirect fire crewman, and that he served in the Republic of Vietnam.  Thus, the Board finds that the Veteran has competently and credibly reported in-service noise exposure. 

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus is 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. § 5107 (West 2014).  The Board acknowledges that there is evidence against the claim.  In that regard, a November 2011 VA examiner opined that it was less likely than not that the Veteran's tinnitus had its onset during his service.  However, November 2014 and June 2017 opinions submitted by the Veteran's private physician are supportive of the claim.  The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for right ear hearing loss 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