Citation Nr: 1801082	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-03 224	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to October 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2017, the Veteran, in Denver, Colorado, testified before the undersigned at a videoconference hearing.  A transcript of that hearing has been associated with the virtual file and reviewed. 


FINDING OF FACT

The competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus had its onset in or is otherwise related to his period of active service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed.


II.  Service Connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Service connection may be established on a presumptive basis for the chronic diseases set forth in 38 C.F.R. § 3.309(a), including tinnitus if there is evidence of acoustic trauma in service.  See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (finding tinnitus to be an "organic disease of the nervous system," which is listed in 38 C.F.R. § 3.309(a)).

The chronic diseases set forth in 38 C.F.R. § 3.309(a) will be considered incurred in service if manifest to a degree of ten percent within one year of service.  38 C.F.R. §§ 3.307, 3.309(a).  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; 
(2) evidence of post-service continuity of the same symptomatology; and 
(3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). 

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  

After review of the record, the Board finds that the criteria for service connection for tinnitus have been met.  

The record demonstrates competent evidence of tinnitus, to include constant ringing as noted on an August 2011 VA examination report.  Thus, the Board finds of a current disability.  

The record demonstrates that the Veteran's military occupational specialty (MOS) was weatherman and that he served on an aircraft carrier.  11/30/2011, Certificate of Release.  In September 2017, the Veteran testified that he was exposed to acoustic trauma as part of his MOS duties and due to working on an aircraft carrier; specifically, he stated that he was constantly exposed to noise while working under the flight deck and in close proximity to where jet engine testing was conducted.  09/25/2017, Hearing Transcript.  Accordingly, the Board finds competent evidence of acoustic trauma in service as consistent with the duties, places, and circumstances of his service.  

In September 2017, the Veteran testified that he first noticed ringing in his ears shortly after service, and that he has experienced such symptoms on a recurrent basis since that time.  09/25/2017, Hearing Transcript.  A December 2011 treatment note states that the Veteran's bilateral tinnitus is due to working on an aircraft carrier.  02/25/2016, CAPRI, p. 6.  Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus had its onset in or is otherwise related to his period of service, including manifesting to a compensable degree within one year of service.  See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  

The Board acknowledges a VA examiner's August 2011 opinion that it is less likely than not that the Veteran's tinnitus was caused by or a result of noise exposure while in service.  08/02/2011, VA Exam.  However, the examiner's opinion is assigned little probative weight because the examiner did not have the opportunity to consider the Veteran's testimony as to the onset of tinnitus, and the examiner did not opine as to whether tinnitus had its onset during the Veteran's period of active service.  


ORDER

Service connection for tinnitus is granted.  




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs