Citation Nr: 18140193 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 12-28 805 DATE: October 2, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. Tinnitus is due to noise exposure during active service. 2. The Veteran has PTSD that is due to a valid in-service stressor. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection is warranted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101,1112, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997);38 C.F.R. § 3.303 (b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 1. Tinnitus The Veteran asserts that service connection for tinnitus is warranted. He contends that such condition is due to military noise exposure. In this case, the evidence of record indicates that the Veteran currently has a tinnitus disability. Specifically, at the January 2012 VA examination, the examiner diagnosed tinnitus. Based on the VA examination report, the Board finds that the first requirement of service connection has been met. The evidence of record also indicates that the in-service injury requirement has been met. As a preliminary matter, service treatment records are negative for complaints, treatments, or diagnosis of tinnitus. At the Veteran’s March 1970 separation examination, upon clinical evaluation his ears were determined to be normal. No hearing test was performed at the time of military separation. However, in a June 2011 statement, the Veteran asserted that his tinnitus was from working on the U.S.S. Albert David DE-150. He stated that he was a deck aid and was around the five-inch deck guns when they were giving support fire in Da Nag Harbor. In a February 2012 statement, the Veteran reported that he felt his tinnitus was due to being around large guns on ships being fired at in enemy territory on a daily basis. The Veteran’s Form DD-214 reflects that his military occupation was boatswain’s mate. Based on this evidence, acoustic trauma during military service is conceded. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The remaining issue is whether tinnitus is related to the in-service acoustic trauma. In this case, the January 2012 VA examiner opined that the Veteran’s tinnitus was not related to military service. The examiner noted that any tinnitus the Veteran may have had during military service was only temporary in nature. Brief spontaneous tinnitus, lasting seconds to minutes is a nearly universal sensation. Temporary tinnitus lasting minutes to hours occurs routinely after noise exposures that are sufficiently intense and or prolonged to cause temporary injury to the ear. Nevertheless, the Board observes that service connection may be established upon a showing of continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Furthermore, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is competent to report that he has tinnitus, and has indicated that he first noticed tinnitus during service and that it has continued since that time. As no conflicting statements from the Veteran are of record, the Board finds his statements regarding the onset of tinnitus and continuity of symptoms are credible. Thus, accepting his lay statements, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C. § 5107 (b). 2. PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a VA psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). “Fear of hostile military activity” is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. An example of such an event or circumstance is incoming rocket fire. The Veteran was afforded a VA medical examination in July 2012. The examiner, a VA psychologist, diagnosed PTSD, adjustment disorder, mixed anxiety, and depressed mood. The examiner noted that the Veteran’s PTSD symptoms meets the criteria for this diagnosis as he indicates that his is troubled by intrusive thoughts, flashbacks, and significant hyperarousal as a result of his experiences in Vietnam. The examiner opined that it at least as likely as not that the Veteran meets the criteria for PTSD with a need of further stressor verification to confirm exposure to reported stressors. The examiner noted that given the limited information provided and minimal exposure to combat situations per official records, it is less likely than not his claimed stressor is related to his overall fear of hostile military terrorist activities. In a February 2012 statement, the Veteran reported coming under enemy fire during active duty service in the Republic of Vietnam October 1969 and March 1970, while a member of the DE 1050 from the USS Albert David. Service treatment records confirmed that the Veteran was aboard the USS Albert David from at least April 9, 1968 to March 31,1970. In a May 2014 letter, the U.S. National Archives confirmed that the U.S.S. Albert David provided naval gunfire support on December 25, 1969 to December 10, 1969 and from February 27, 1970 to March 8, 1970. The RO determined that the Veteran’s in-service stressor was verified. See June 2014 Deferred Rating. In this case, the Board find that the evidence of record is sufficient to warrant a grant of service connection for PTSD pursuant to 38 C.F.R. § 3.304(f)(3). In this regard, the July 2012 VA examiner, a VA psychologist, determined that the Veteran’s claimed stressor was adequate to support a diagnosis of PTSD and his symptoms were related to his experiences in Vietnam, upon verification of his reported stressors. The RO found that the stressor was verified, however, such “verification” is not required pursuant to this regulation. The Veteran’s claimed stressor of coming under enemy fire while aboard U.S.S. Albert David is consistent with the places, types and circumstance of the Veteran’s service as a boatswain’s mate in Vietnam, and there is no clear and convincing evidence to the contrary. This is sufficient along with the other evidence to warrant a finding that the stressor is valid and provides a sufficient basis on which to grant service connection for PTSD. Sanchez–Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed. Cir. 2014) (“VA adjudicators, not examining psychiatrists and psychologists, will decide whether the claimed stressor is consistent with the veteran’s service.” (quoting 75 Fed. Reg. 39843, 39844 (July 13, 2010)) 39843, 39844 (July 13, 2010). (Continued on the next page)   For the foregoing reasons, the evidence reflects that the Veteran’s stressor is related ot his fear of hostile military activity and a VA psychologist confirmed that the stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor. Moreover, the claimed stressor is consistent with the circumstances of the Veteran’s service and there is no clear and convincing evidence to the contrary. The Veteran’s lay testimony alone thus establishes the occurrence of the claimed in-service stressor. As the Veteran’s PTSD is related to a valid in-service stressor, service connection for PTSD is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel