Citation Nr: 1800055	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-20 511	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N.S. Pettine, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1942 to November 1942 and from June 1943 to October 1948, including service during World War II.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran was scheduled to present testimony before a Veterans Law Judge in October 2017; however, he failed to report.  As the record does not contain any explanation as to why the Veteran failed to report to the hearing, or a request to reschedule, the hearing request is withdrawn.  See 38 C.F.R. § 20.704(d) (2017).

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) (2012).


FINDING OF FACT

The Veteran currently has tinnitus, and evidence indicates that it is at least as likely as not related to in-service noise exposure.


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).  Consistent with this framework, service connection is warranted for a disease first 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).

Additionally, other organic diseases of the nervous system, which includes tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a).  38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (including tinnitus as an organic disease of the nervous system).  Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the Veteran's separation from service.  Walker, 708 F.3d at 1338.

At the outset, the Board finds that the Veteran currently has tinnitus.  As a layperson, the Veteran is competent to identify tinnitus and testify as to observable symptoms such as ringing in his ears.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran has done so credibly in this case in December 2011 and April 2012 statements as well as his reports during a December 2011 VA examination.

Next, the Board finds that the Veteran incurred in-service noise exposure.  Indeed acoustic trauma in service was already acknowledged in the October 2011 rating decision due to the Veteran's military occupational specialty of a radio operator mechanic.  Additionally, in December 2011, the Veteran credibly recounted noise exposure via flying in multiples types of aircraft and being in the presence of machine gun and cannon fire.  In April 2012, the Veteran stated that he did not wear headphones while in flight and that he and his fellow soldiers, being accustomed to the noise, communicated by shouting at each other.  The 

Finally, the Board finds there is reasonably sufficient evidence to establish a nexus between tinnitus and military noise exposure.

At the VA examination in December 2011, a VA examiner opined that it would be speculative to provide an opinion as to the cause of the Veteran's tinnitus.  In support of this conclusion, the examiner relied, in part, on the Veteran's self-reported post-service occupational and recreational noise exposure.  The examiner also explained that the Veteran reported that the initial onset of tinnitus was within a couple years of discharge from active service.  The examiner further noted that the Veteran described tinnitus as consistent with noise-induced hearing loss, but his service records do not contain objective evidence of his auditory status at the time of enlistment, discharge, or any other time during active service to indicate hearing was either within normal limits or impaired.  

In April 2012, the Veteran asserted that his in-service exposure to loud aircraft engine noise caused his current tinnitus.  

The Board finds that the VA examiner adequately explained her medical opinion with respect to Jones v. Shinseki, 23 Vet. App. 382 (2010).  The Veteran's assertion regarding the etiology of his tinnitus has also been considered.  However, as a layperson, he is not competent to opine as to the etiology of his tinnitus (as opposed to establishing its presence), particularly as he had noise exposure both during and after military service.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Nonetheless, the Board finds that when the evidence is viewed in its entirety, including that pertinent to service, the lay contentions, and the December 2011 medical opinion, it is at least as likely as not that tinnitus is related to service.  That is, the evidence of causal nexus is in relative equipoise.  38 C.F.R. § 3.303(d).  In reaching this determination, the Board notes that the Veteran did indeed experience acoustic trauma in service, and credibly reported that he noticed tinnitus in close proximity to service discharge.  Further, the VA examiner did indicate that the current tinnitus appears to be consistent with noise-induced hearing loss.  She also indicated that it was not possible to determine what degree of military noise exposure versus post-service noise exposure contributes to Veteran's current experience of tinnitus.  Thus, it appears to the Board that the examiner believed at least a portion of the military noise exposure contributed to the current tinnitus.  Resolving all reasonable doubt in favor of the Veteran on the question of causal nexus, his tinnitus is related to military noise exposure.

Service connection for tinnitus is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  


ORDER

Service connection for tinnitus is granted.




____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs