Citation Nr: 1800840 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-37 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to September 1976. He served in the Republic of Vietnam and was awarded the Army Air Medal. He also served in the Army National Guard from October 1976 until April 2009, with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, tinnitus is related to his service, to include ACDUTRA/INACDUTRA service. CONCLUSION OF LAW Entitlement to service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). "Active military, naval, and air service" includes (as relevant here) any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury (and not disease) incurred in or aggravated in line of duty. See 38 C.F.R 3.6 (2017). Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. With respect to a current disability, the Veteran is competent to testify as to the presence of tinnitus and he has done such during the appeal period. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that "ringing in the ears is capable of lay observation"); March 2009 VA Audio Examination report (noting a current complaint of tinnitus). As such, the evidence indicated a current disability of tinnitus. With respect to an in-service event, the Veteran filed a claim in August 2008, stating "tinnitus secondary to helicopter noise as a crewman and door gunner on active duty." In his December 2009 Notice of Disagreement (NOD), he referenced "the acoustical trauma of being on an aircraft as a door gunner for over a year in combat." Personnel records reflected that the Veteran served in the Republic of Vietnam and his principal duty during such service was listed as Machine Gunner, Crew Chief and Helicopter Mechanic. The Agency of Original Jurisdiction (AOJ) conceded that the Veteran's active duty service included noise exposure. See, e.g., July 2009 Rating Decision. In addition, as noted in the Introduction above, the Veteran also served in the Army National Guard from October 1976 until April 2009. A March 2009 Army National Guard Retirement Points History Statement listed the annual points earned toward retirement related to the Veteran's ACDUTRA and INACDUTRA service. The March 2009 VA audio examination report stated that the Veteran "reported that after discharge from the active duty Army, he worked in the Army National Guard as a full-time helicopter repair technician...from 1976 until present. He reported frequent exposure to helicopter noise performing repair and maintenance on the air craft. He reported that hearing protection was routinely used." It appears that such was in reference to both the Veteran's civilian employment and ACDUTRA/INACDUTRA service with the National Guard. Accordingly, the Board finds that the Veteran's ACDUTRA and INACDUTRA service included noise exposure. The remaining issue is whether the Veteran's current disability (tinnitus) is related to the noise exposure that he was exposed to during his service (to include ACDUTRA/INACDUTRA). Of record is a March 2009 VA audio opinion, which stated that the Veteran's "tinnitus is less likely as not (less than 50/50 probability) the result of [the Veteran's] military noise exposure while on active duty with the US Army between 1968 and 1976." As part of the provided rationale, the examiner stated that "the possibility of occupational noise exposure as a full time helicopter repair technician in the Army National Guard for the last 32 years can not be ruled out at this time as a contributing factor for his tinnitus." Upon review, and resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus is related to his service, to include ACDUTRA/INACDUTRA service. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). As noted, the Veteran's service, to include his ACDUTRA/INACDUTRA service, included noise exposure. In addition, as noted, the March 2009 VA audio opinion indicated that the Veteran's National Guard employment "can not be ruled out at this time as a contributing factor for his tinnitus." It does not seem reasonably practical to separate the impact of the Veteran's noise exposure occurring during his ACDUTRA/INACDUTRA service and during his civilian employment (which was for the National Guard in an apparently similar role). In sum, the Board therefore concludes that entitlement to service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs