Citation Nr: 1761104 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 15-31 352A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and B.L. ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1962 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran has tinnitus that is attributable to his active military service. CONCLUSION OF LAW The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). Review of the Veteran's service treatment records (STRs) reflect that they are silent as to any complaints of or treatment for hearing problems or tinnitus, and at his May 1964 separation examination the Veteran noted that he had no ear, nose, or throat problems. However, the Veteran did note that he experienced frequent or severe headaches and car, train, sea or air sickness. In October 1963 the STRs note that the Veteran was experiencing continued nausea and headaches. Specifically the medical provider noted that the Veteran "still [had] massive head/neck headache." Within these same notes, the medical provider indicated that there were three test groups being administered different medical therapies and doses of medication. The Veteran was provided a VA audiological examination in July 2014. The Veteran reported recurrent tinnitus in both ears. The examiner diagnosed the Veteran with tinnitus. However, the examiner opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner reasoned that there were no reports of tinnitus in the military and the Veteran's military occupational specialty (MOS) was not subject to high noise exposure. In a July 2016 lay statement from G.A, a soldier that served with the Veteran, he stated that during training they performed "infiltration course crawling under machine gun fire" twice a day. G.A. stated that they also underwent patient evacuation training with helicopters and the Veteran was selected to ride in the helicopter. G.A. stated that after this training the Veteran complained of ringing in his ears. Further, G.A. stated that he and the Veteran worked in medical maintenance that was a "noisy shop" where they built pens and cages for test animals. Also, G.A. stated that in 1963 they were a part of a medical testing project. G.A. recalled the Veteran getting ill from the medication and experiencing vomiting and a headache from a fall that resulted in ringing in the ears. In an August 2016 lay statement from L.S., a soldier that served with the Veteran, he stated that in 1963, after receiving a shot, many of the soldiers tested, including the Veteran, became very ill. L.S. recalled that the Veteran informed L.S. that he became ill off base when driving a car, and when he pulled over to vomit, he fell out and hit his head. L.S. remembered the Veteran stating that he started having bad headaches and ringing in the ears following that incident. At the October 2017 Travel Board hearing, the Veteran testified that he was in a medical test group where he was given shots and was under observation for nine weeks. The Veteran stated that after he was administered his shot he became very ill. He described an incident where he experienced severe vomiting while driving. When he pulled the car over to vomit, he fell out of the vehicle, hit his head, and was unconscious for a period of time. Upon being released from treatment, the Veteran noticed that he had ringing in the ears. He stated that he has experienced ringing in the ears since hitting his head in service to the present. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, a grant of service connection for tinnitus is warranted. The evidence shows a current diagnosis of tinnitus, which the Veteran reported began during service and has continued from that time to the present. With regard to the Veteran's complaints of in-service medical testing and the resulting vomiting, headaches, and tinnitus, the Board finds credible his account of the onset of tinnitus in service as it is consistent with the STRs noting medical testing groups and the Veteran experiencing "massive head/neck headaches." As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of tinnitus. The Board acknowledges that in the July 2014 VA examination report, the examiner stated that it was less likely than not that the Veteran's tinnitus began in or is otherwise etiologically linked to military service. However, the Board finds that this medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of experiencing a fall, headaches, and resulting tinnitus while in service. Based on the foregoing, the Board finds that this opinion is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Consequently, and given that the Veteran is diagnosed with tinnitus and that he has credibly reported his experiences of a fall, headaches, and tinnitus in service and his continuous symptoms from his time in service to the present, the Board finds that it is as likely as not that the Veteran's currently diagnosed tinnitus is traceable to military service. With resolution of reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs