Citation Nr: 1761065 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 16-20 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1971. The Board notes that the Veteran's DD-214 for this period records 14 years of other service, including 11 months of foreign service. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). FINDING OF FACT The Veteran has tinnitus that is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran filed for service connection for tinnitus and hearing loss in August 2012. The Veteran was afforded a VA examination of his tinnitus and hearing loss in January 2013. As recorded in the examination report, the Veteran reported that he did not hear tinnitus currently or in the past. Audiological testing was also completed to assess the nature, severity, and etiology of his hearing loss. Based on the results, the examiner opined that the Veteran's hearing loss was related to service, but that his tinnitus was not. In finding that hearing loss war related to service, the examiner noted that the Veteran had served as an aircraft mechanic for twenty years and that VA had conceded noise exposure during service. Specifically, the Veteran flew for over 500 hours during which he heard jet engines and flight line noise. Further, after service, while he worked as a heavy equipment mechanic, he wore ear protection. The examiner then opined that the Veteran's tinnitus was less likely than not related to service because, based on the Veteran's report of not hearing tinnitus at the examination or in the past, there was no diagnosis of tinnitus. In hi May 2016 substantive appeal, the Veteran states that the examination report does not accurately reflect his statements during the examination regarding tinnitus. Rather, he asserts that he does have tinnitus. He argues that he should be granted service connection for tinnitus because noise exposure during service was conceded by VA, his hearing loss was found to be related to service, and noise exposure has been found to cause both hearing loss and tinnitus. A VA treatment record from April 2012, only a few months prior to the beginning of the claims period, notes the Veteran's report of tinnitus. Further, only a few months later the Veteran filed for service connection for tinnitus. Finally, other than in the January 2013 report, the Veteran has continuously asserted that he has tinnitus, which he is competent to report. See Charles v. Principi, 16 Vet. App. 370 (2002). As a result, the Board finds that, even if he did report that he did not hear tinnitus during or prior to the January 2013 VA examination, the Veteran currently has tinnitus for purposes of the current disability element of the service connection claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that the current diagnosis of a disability element is met when there is record of a diagnosed condition shortly before the beginning of the claims period). This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Having found that the Veteran has tinnitus, the Board does not find the VA examiner's opinion that tinnitus is not at least as likely as not related to service to be persuasive as it is based on an inaccurate fact, i.e., that the Veteran does not have tinnitus. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). However, the Board agrees with the Veteran's argument that in this case the rationale underlying the positive nexus opinion for hearing loss can also be applied to tinnitus. Thus, due to twenty years of noise exposure as an aircraft mechanic during service, the Board finds that the Veteran's tinnitus is at least as likely as not related to service. Having found that the Veteran has tinnitus, and that tinnitus is related to service, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs