Citation Nr: 1804117 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-29 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claims file now resides with the Montgomery, Alabama RO. 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 currently has tinnitus and the evidence indicates that it is at least as likely as not a result of service or etiologically related to in-service acoustic trauma. CONCLUSION OF LAW 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: (1) chronicity during service, (2) continuity of symptomatology since service, and manifestations within one year of separation from service. Walker, 708 F.3d at 1338. At the outset, the Board finds that the Veteran currently has tinnitus. Specifically, during a May 2014 VA examination, the examiner assessed the Veteran with bilateral, constant tinnitus. Additionally, in June 2014, the Veteran stated that he had a constant buzzing and chirping in his ears. As a layperson, the Veteran is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, the Veteran is also competent to testify about the observable symptom of buzzing or chirping in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's description and identification of tinnitus to be credible in the instant case. Next, the Board finds that the Veteran incurred in-service acoustic trauma. Indeed, within the instructions given to the May 2014 VA examiner, VA already acknowledged that the Veteran suffered from in-service acoustic trauma due to his artillery service. Additionally, in his September 2014 Notice of Disagreement (NOD), the Veteran explained that he was exposed to loud noise in service due to artillery fire, night time illumination fire for tank exercises, and weapons training. Additionally, in June 2014, the Veteran stated that he did not have any hearing protection in service and recounted one particular instance where he stood right next to a tank as it was firing. The Board finds the Veteran's description of in-service noise exposure to be credible. Lastly, the Board finds that a nexus exists between the Veteran's tinnitus and his military service. Specifically, in June 2016, the Veteran explained that his tinnitus began in service and continued ever since. The Veteran repeated the same contention in his September 2014 NOD. The Board finds the Veteran to be credible in this instance and, as a layperson, he is competent to discuss when he began experiencing tinnitus symptoms. See Charles, 16 Vet. App. 370; Layno, 6 Vet. App. 465. In making this determination, the Board is cognizant of the May 2014 VA examiner's opinion that the Veteran's tinnitus was less likely than not caused by military noise exposure. In support of her opinion, the examiner stated that: (1) there were no declines in the Veteran's hearing or reports of tinnitus noted in the Veteran's service treatment records (STRs); (2) the Veteran worked around noise for 35 years after service, with hearing protection as needed; and (3) the Veteran was unable to determine a cause or onset of the tinnitus other than saying it occurred years ago. But, in his June 2016 statement, the Veteran first stated that he did not report his tinnitus while he was in service because ringing in the ears was a reportedly common issue amongst all of his fellow service members. Further, the Veteran stated that he did not report tinnitus during his separation examination because he was ready to go home and it was common knowledge that his discharge would be delayed if he reported a medical issue. Secondly, in regard to his post-service noise exposure, the Veteran stated that he worked on computers for a factory, however he worked in offices away from the factory itself. The Veteran explained that any time he had to walk through the factory, he wore hearing protection. Lastly, in regard to his inability to recall the onset of tinnitus during the VA examination itself, the Veteran explained that he was caught off guard by the examiner's question and could not remember on the spot. The Veteran stated that he told the examiner that he was not sure because he did not want to lie. But, after returning home and thinking about the question, the Veteran determined that his tinnitus first began in service. As a result of the Veteran's statements providing more information regarding his in-service experiences and his post-service noise exposure, as well as his explanation regarding his inability to recall the onset of tinnitus during the May 2014 VA examination, the Board finds the May 2014 VA examiner's opinion less probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the Board finds the evidence is at least evenly balanced regarding whether the Veteran's tinnitus is related to service. As such, service connection for tinnitus is warranted and the Board will grant the Veteran's claim. ORDER Service connection for tinnitus is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs