Citation Nr: 1805594 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-28 671A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2017, the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing. A transcript of the hearing is associated with the claims file. FINDING OF FACT The evidence is sufficient to show that the Veteran's tinnitus was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have ben been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Tinnitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). A disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). The Veteran contends that his tinnitus is due to acoustic trauma in service. See December 2017 Hearing Transcript. The Board notes that noise exposure is consistent with the duties and circumstances described in the Veteran's personnel records. As such, in-service noise exposure is substantiated. The Veteran has a current diagnosis of tinnitus. See February 2013VA Examination Report. As such, the issue that remains disputed is whether his tinnitus is related to service, manifested to a compensable degree within one year of separation, or are otherwise related to service. The Veteran's service treatment records are silent for complaints or treatment for tinnitus in service. However during a December 2017 hearing, the Veteran reported that he has experienced tinnitus since separation from service but initially did not pay much attention to it until it recently began to get progressively worse. According to a February 2013 VA examination report, the Veteran reported that he first noticed tinnitus no more than 2 years ago with no reported circumstance of onset. The examiner opined that the Veteran's tinnitus is a symptom associated with his non service-connected hearing loss and was less likely as not related to military noise exposure. The examiner reasoned that given that the tinnitus was not noticed until 2 years ago, which was 46 years after separation, his tinnitus was not likely a result in-service noise exposure. However in the August 2014 VA Form 9 the Veteran explained that the examiner misconstrued his statements in the February 2013 VA examination report. The Veteran indicated that his tinnitus had gotten worse over the past two years but that he had tinnitus continuously since separation. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and continuity of his symptomatology. Kahana, 24 Vet. App. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316. The Board finds the Veteran's assertion that his tinnitus symptoms began in service credible, as well as his statements that he has experienced tinnitus continuously since service. In light of the foregoing, the Board finds that the requirements of 38 C.F.R. § 3.303 have been met and service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs