Citation Nr: 18146908 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 15-23 596 DATE: November 2, 2018 ORDER Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran currently has tinnitus. 2. The Veteran was exposed to acoustic trauma during service. 3. Symptoms of tinnitus have been continuous since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from January 1992 to May 1995. This appeal arises from a September 2014 rating decision, which denied service connection for tinnitus. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R.§§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board is granting service connection for tinnitus, the issue is substantiated and there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection for Tinnitus The Veteran contends: (1) he currently has tinnitus; (2) tinnitus began during service after experiencing loud noises; and (3) tinnitus has been continuous since separation from service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Tinnitus is a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). 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 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). As the Board is granting presumptive service connection for tinnitus based on continuity of symptomatology (adjudicated below) since service under 38 C.F.R. § 3.303(b), the theories of direct service connection (38 C.F.R. § 3.303(d)), presumptive service connection based on "chronic" symptoms in service (also 38 C.F.R. § 3.303(b)), and presumptive service connection for hearing loss manifesting to a compensable degree within one year of service (38 C.F.R. §§ 3.307, 3.309) pursuant to the same benefit are rendered moot, and there remain no questions of law or fact as to the fully granted service connection issue. See 38 U.S.C. § 7104 (stating that the Board decides questions of law or fact). The Veteran currently has tinnitus. Lay observation is sufficient to show the presence of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Throughout the course of this appeal, the Veteran has consistently said he currently experiences ringing in the ears. The Veteran has described this ringing as a constant “buzz” or “whistle.” The Veteran’s wife reports the Veteran often complains about “constant ringing” in his head and ears. These statements are competent, credible, and probative. Next, the Board finds the Veteran experienced in-service acoustic trauma (loud noises). The nature of the Veteran’s duties as an Airborne Infantryman exposed him to loud noises during service. As an Infantryman, the Veteran was subjected to grenade explosions, machine gunfire, and loud mechanical noise. The Veteran contends that after experiencing these loud noises, he could feel ringing and buzzing in his ears. The Board finds the Veteran’s account of in-service noise exposure and symptoms of tinnitus to be credible and consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). The Board finds the weight of the evidence of record is at least in equipoise on the question of whether the Veteran had continuous symptoms of tinnitus since service separation. The Veteran has made credible statements and that tinnitus symptoms began in active service and have been continuous since service. The Board finds the Veteran’s lay and hearing assertions of the onset of tinnitus during service, and his reports he has had continuous tinnitus symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current diagnosis, and the lack of probative evidence to the contrary, are sufficient to place in equipoise the question of whether the current tinnitus was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, based on continuous post-service symptoms of tinnitus, presumptive service connection for tinnitus is warranted under 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dye, Law Clerk