Citation Nr: 1803207	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-20 235	)	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:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from March 1969 to March 1971, to include service in the Republic of Vietnam.  

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

In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  


FINDING OF FACT

The Veteran's tinnitus is related to in-service acoustic trauma.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus are met.  38 U.S.C. 
§§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his tinnitus is due to his in-service noise exposure to military weapons without the benefit of hearing protection.  See December 2016 Board Hearing Tr. at 2-3.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Regarding element one, current disability, the Veteran has a current diagnosis of tinnitus.  He competently reports tinnitus in his lay submissions and to a VA examiner.  See July 2011 VA examination report.  In this regard, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Even though his service treatment records are silent for reports of tinnitus in service, the second element required for direct service connection has been satisfied as VA has already conceded that the Veteran was exposed to in-service acoustic trauma as a light weapons infantryman.

Thus, this appeal turns on whether there is a nexus between the Veteran's tinnitus and service.  The Veteran has competently and credibly testified that he experienced tinnitus in service and since service due to the conceded in-service acoustic trauma.  See June 2014 VA Form 9; December 2016 Board Hearing Tr. at 2-3.  Further, in an October 2011 written statement, his wife competently and credibly reported that she observed the Veteran complain of ringing in his ears since 1971.  Thus, the third element of service connection is established. 

The Board acknowledges that the July 2011 and April 2014 VA opinions provided negative nexus opinions.  However, the Board finds that the July 2011 examiner's opinion was based on an inaccurate factual background, noting that the Veteran reported the onset of tinnitus in 1975.  The Veteran has since clarified in statements and testimony that his hearing loss began in 1975 and that his tinnitus began during service.  See October 2011 Notice of Disagreement; June 2014 VA Form 9; Board Hearing Tr. at 2-4.  As such, the Board affords the July 2011 VA examiner's opinion no probative value.  See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative).  Furthermore, the April 2014 VA examiner relied on the absence of documented tinnitus in service as the rationale for his opinion.  Notably, he failed to address whether the Veteran's exposure to acoustic trauma in service caused his current tinnitus, and did not consider the Veteran's lay statements as to an onset of tinnitus in-service, and its continuity since that time.  Accordingly, the Board assigns this negative opinion no probative value.  

The evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service.  Thus, resolving all reasonable doubt in his favor, service connection is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for tinnitus is granted. 



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs