Citation Nr: 18140979 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 17-53 281 DATE: October 9, 2018 ORDER Entitlement to service connection for bilateral tinnitus is granted. FINDING OF FACT Resolving all doubt in his favor, the Veteran’s tinnitus is related to his active military service. CONCLUSION OF LAW Tinnitus was incurred in active duty. 38 U.S.C. §§ 1110, 1131, 5107 (2002); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1958 to June 1961. He also had subsequent service of an unknown nature in the United States Army Reserves until August 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 1. Entitlement to service connection for bilateral tinnitus Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2002). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2002); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran asserts that he was exposed to excessive noise from Howitzer fire and cannons during his active service, and he has experienced constant bilateral tinnitus since that time. See March 2017 and May 2017 statements from the Veteran. For the reasons set forth below, the Board concludes that service connection for this disability is warranted. The record includes a diagnosis of tinnitus in January 2016 and April 2017 based on the Veteran’s subjective reports of experiencing bussing in his ears, described as “like hundreds of cicadas all moving their wings at once.” See a January 2016 VA treatment record, the April 2017 VA Audiological examination report, and an October 2017 statement from the Veteran. As such, element (1) has been demonstrated. Concerning element (2), evidence of an in-service event or injury, the Veteran has consistently reported that he was exposed to excessive noise from Howitzer fire and cannons during his service. While the Veteran’s service treatment records are devoid of any instance(s) of complaints of, or treatment for, tinnitus or any hearing-related injury or disease, the Board notes that the Veteran served as a Field Artillery Surveyor, and his reports of experiencing fire from canons and Howitzers is congruent with this Military Occupational Specialty (MOS). Accordingly, element (2) has been demonstrated. Regarding critical element (3), evidence of a medical nexus between the current disability and the in-service event or injury, the Board notes that the only nexus opinion of record is unfavorable to the Veteran’s appeal. Specifically, after a review of the record and audiological testing of the Veteran, the April 2017 VA examiner opined that the Veteran’s tinnitus was at least as likely as not secondary to his nonservice-connected bilateral hearing loss disability rather than his in-service noise exposure. In providing this opinion, the examiner noted that the Veteran’s service treatment records were devoid of complaints of, or treatment for tinnitus, leading to the conclusion that no “noise injury” occurred in service despite his exposure to large weapon fire. However, the April 2017 examiner’s unfavorable nexus opinion is not fatal to the Veteran’s appeal. Tinnitus, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. 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. With chronic disease evidenced as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). The Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that the Veteran’s lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The April 2017 VA examiner noted that the Veteran's assertion that his bilateral tinnitus has been present and consistent since his exposure to heavy artillery fire during his active duty. This is consistent with the Veteran’s statements submitted to VA in March 2017, April 2017, May 2017, and October 2017. Further, as noted above, tinnitus is a disability the Veteran is competent to identify. Charles, 16 Vet. App. at 374-75. There is no reason to doubt the credibility of the Veteran's reports and he is competent to report the continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is considered competent to report on that of which he or she has personal knowledge). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is credible in his reporting of continuous symptoms since service. After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the Veteran had excessive noise exposure in service and currently has tinnitus. Additionally, the Board finds persuasive the competent opinion of the Veteran relating his current tinnitus to his in-service noise exposure. Resolving reasonable doubt in the Veteran's favor, service connection for the Veteran's bilateral tinnitus is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel