Citation Nr: 18147458 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 18-39 232 DATE: November 6, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT 1. The Veteran is competent to report having experienced tinnitus since service. CONCLUSION OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from October 1999 to October 2013, with service in the Persian Gulf War. This case comes before the Board of Veterans’ Appeals (the Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The VCAA describes VA’s duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As discussed in more detail below, sufficient evidence is of record to grant the Veteran’s claim. Thus, any errors in complying with the notice or assistance requirements with respect to this matter are moot. Entitlement to service connection for tinnitus is granted. Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310 (a) (2017). In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that he was exposed to excessive noise during his service, resulting in tinnitus. See July 2018 VA Form 9. He asserts that he has ringing in his ears that has been present since his exposure to excessive noise in service. See id. The evidence of record documents that the Veteran has current tinnitus inasmuch as the Veteran has credibly stated that he currently has ringing in his ears. See March 2017 VA examination; Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran’s observation both competent and credible evidence of a current disability. As for the second prong of service-connection, an in-service incurrence, the Veteran asserts that he was exposed to acoustic trauma in service because he slept in close proximity to flight line operations, and because that he served in aircraft maintenance. See July 2018 VA Form 9; see also March 2017 VA examination. The Veteran asserts that he began to experience symptoms, to include a “humming” in his ears, prior to his discharge from service, and that his symptoms have continued since service. See July 2018 VA Form 9. The Veteran’s DD-214 indicates that he served as an aircraft electrical and environmental systems craftsman. Therefore, after consideration of the Veteran’s assertions and his military personnel records, the Board finds the Veteran to be a reliable historian as to his report of in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board credits the Veteran’s statements and concedes in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. As to the third prong of Shedden, a nexus between the Veteran’s current tinnitus and the Veteran’s in-service acoustic trauma, the Board notes the medical and lay evidence of record. The Veteran was afforded a VA examination in March 2017. However, the VA examiner opined that it is less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The VA examiner supported his opinion by stating that there were no changes in hearing attributable to noise from a specific episode or period of exposure, and that there was no evidence of a cause of tinnitus while on active duty. While the Board considers the VA examiner’s opinion and supporting rationale, the Board finds such to be of limited probative value. The VA examiner did not consider the Veteran’s assertions of acoustic trauma in service, and the VA examiner did not consider the Veteran’s assertions of “humming” in his ears prior to exiting service. The Board notes that the Veteran himself is of the opinion that such a link exists between his current tinnitus and active service. While a lay person, he is capable of opining on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Tinnitus, or ringing in the ears may be observed and described by a lay person. Jandreau, 492 F.3d 1372; Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, the Board finds the Veteran’s statements as to tinnitus since service to be credible. The Veteran has reported symptomatology of tinnitus since service, with the Veteran reporting a “humming” in his ear beginning and continuing since service. See July 2018 VA Form 9. Accordingly, any doubt regarding the onset of the Veteran’s current tinnitus must be resolved in the Veteran’s favor. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be of probative value. (Continued on the next page)   In conclusion, the Board notes the probative evidence of record and finds that the Veteran’s current tinnitus began in service. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel