Citation Nr: 1754531 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-15 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). Procedurally, the Veteran was denied service connection for tinnitus in the October 2012 rating decision. The Veteran submitted a notice of disagreement in October 2013. In response to an April 2014 statement of the case, the Veteran perfected his appeal in April 2014. The Veteran testified at a July 2017 videoconference Board hearing before the undersigned Veterans Law Judge, and the transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for bilateral hearing loss has been raised by the record (see July 2017 videoconference hearing transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT Resolving any reasonable doubt in his favor, the Veteran's tinnitus manifested during his active duty service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus are met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis The Veteran seeks service connection for tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran in this case is currently diagnosed with tinnitus, as evidenced in the September 2012 VA audiology examination report. Further, as stated above, the tinnitus is a condition capable of lay observation. The Veteran maintains that he has tinnitus as a result of noise exposure in service. Specifically, he asserts that he had ringing in the ears during service and has continued to experience symptoms after discharge. In the July 2017 hearing transcript, the Veteran testified that he was stationed in Germany and assigned to the Infantry Division and was exposed to firefighting and loud noises while working on military vehicles. In addition, he reported shooting numerous weapons and being issued a grenade launcher. He further testified that he first noticed the ringing during his last year of service, and that it gradually worsen over the years, although he did not complain about it. Review of the claims file reflects that the Veteran's service treatment records are silent of any complaints, treatment, and/or diagnoses of tinnitus. His DD-214 indicates the Veteran was afforded service medals and decorations, to include an Expert Badge (M-16) bar and a Sharpshooter Badge with Band Grenade bar. In connection with this claim, the Veteran was afforded a VA audiology examination in September 2012. The examiner opined that the Veteran's tinnitus was less likely as not to have incurred in-service because the Veteran reported the onset of his symptoms were in conjunction with a March 2011 diagnosis of an Eustachian tube dysfunction. The examiner concluded that etiology of the Veteran's tinnitus was due to the Eustachian tube dysfunction issue. On review of all evidence, both lay and medical, the Board finds that, with resolution of all doubt in the Veteran's favor, service connection for tinnitus is warranted. The Board acknowledges the unfavorable opinion provided by the September 2012 VA examiner. However, in the April 2014 VA Form 9, the Veteran, through his representative, refuted making statements to the examiner that his symptoms originated at the time of his Eustachian tube disorder issue. Moreover, in the July 2017 Videoconference Hearing Presentation, the Veteran, testified that he found the September 2012 VA examiner's questions "a little confusing" and that he misunderstood some of the questions regarding the onset of his tinnitus symptoms. Rather, the Veteran stated that he was exposed to noise while on active duty, and started suffering from ringing in his ears in 1981 during his last year of service. Thus, to the extent that the September 2012 opinion is based on an inaccurate history, it is inadequate opinion and ultimately of little or no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is an inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight.") The Veteran is competent to report that he was exposed to loud noise in service and that his tinnitus began therein. Indeed, he, as a layperson, is competent to report his own experiences and there is nothing in the record that contradicts these assertions, aside from an absence of documented treatment or complaints, which by itself is insufficient to discredit offered testimony. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's statements in this regard are also credible because they are supported by his service personnel records which show that he earned an Expert Badge (M-16) bar and the Sharpshooter Badge with Band Grenade bar. Therefore, the Board finds his statements not only competent, but credible as well. As noted above, tinnitus is a disability that can be identified through lay observation alone. Charles, supra. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has found his statements that it manifested in service and persisted since that time competent and credible and there is no probative evidence refuting his statements. The Board therefore finds that tinnitus manifested in service and service connection for tinnitus must be granted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs