Citation Nr: 18143151 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-29 419 DATE: October 18, 2018 ORDER Service connection for tinnitus is granted. FINDING OF FACT Tinnitus originally manifested during service. CONCLUSION OF LAW The criteria for service connection for tinnitus has been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971, including service in the Republic of Vietnam. The Veteran received the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations, for this service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In October 2018, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has not been associated with the electronic claims file, however, as discussed below, given this decision represents a full of the benefit sought, the Board can find no prejudice to the Veteran by proceeding with the claim on its merits. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to Service Connection for Tinnitus. The Veteran seeks service connection for tinnitus resulting from in-service noise exposure. After review of the medical and lay evidence of record, the Board finds that service connection for tinnitus is warranted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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 as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). During a December 2015 VA examination the Veteran was diagnosed tinnitus. Thus, he has a current disability. The Veteran's service treatment records, including the entrance and exit examinations are silent for any reports or treatment for tinnitus. On his July 2015 substantive appeal, the Veteran indicated that he was unaware that ringing in the ears was called tinnitus and that the symptoms of the disability began during service. In a December 2015 statement, the Veteran indicated that his primary in-service MOS was Supply Clerk. However, he added that he was also assigned duties as a driver for the First Sergeant. The Veteran underwent two VA examination to determine the etiology of the currently diagnosed tinnitus. During a January 2014 VA examination the Veteran did not report tinnitus. During a December 2015 VA examination, the Veteran reported tinnitus that began about a decade earlier. Based on his reports, both VA examiners found it less likely than not that the Veteran’s tinnitus was incurred during active service. However, the Veteran has since clarified his reports and indicated the onset of tinnitus during service, therefore, the Board finds the VA examinations less probative because the VA examiners opinions were based on inaccurately reported symptoms nad onset dates. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In October 2018, the Veteran testified before the undersigned Veteran’s Law Judge. While the transcript is not part of the record, contemporaneous notes were taken during the hearing. The Veteran reported both in-service noise exposure from multiple sources and the onset of tinnitus during service. Specifically, the Veteran reported noise from large vehicles and attacks on his base while stationed in Vietnam. He stated that in incident, the and explosion occurred about 100 yards from him that was powerful enough to send shock waves through his body. The Veteran reported the onset of intermittent tinnitus following this explosion that later became continuous after further noise exposure to heavy equipment and an additional explosion. As previously stated, competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current tinnitus. However, the competent evidence as to the etiology of the Veteran's tinnitus is in conflict. While the VA examination reports concluded that the Veteran's tinnitus was not related to service, the Veteran has explained that the tinnitus actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel