Citation Nr: 18152527 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-14 455 DATE: November 23, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §1110, 1154(b); 38 C.F.R. §3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to April 1975, including service in the Republic of Vietnam. He is the recipient of the Combat Action Ribbon (CAR). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for tinnitus. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the file; however, one is not necessary for a decision on the claim. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). Entitlement to service connection for tinnitus. The Veteran claims that his tinnitus is due to his combat military service while stationed in Vietnam and that he has experienced ringing in his ears in and since service. See, e.g., Veteran’s statement dated September 2013. He reports that during service, he was exposed to constant loud noise, such as hand guns, as military occupational specialty (MOS) was a fire control technician. He also reports that during service, he was exposed to loud noise during naval gunfire support missions while stationed in Vietnam. Notably, he indicated he was not provided hearing protection during service. Id. For the reasons below, entitlement to service connection for tinnitus is warranted. As to a current disability, tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that ringing in the ears is capable of lay observation). Here, the Veteran has reported ringing in his ears; thus, a current disability has been demonstrated. With respect to the in-service injury element, the Veteran’s service records show that his MOS was an ordinance mechanic and that he served in combat in the Republic of Vietnam. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (including the CAR on the list of decorations indicative of combat). While the Adjudication Manual is not binding on the Board, its list of decorations indicating combat is helpful in determining whether the Veteran engaged in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). The Board therefore accepts the Veteran’s testimony that he suffered acoustic trauma in service. Moreover, the fact that the claimed cause of the Veteran’s tinnitus i.e., acoustic trauma from hand guns and naval gunfire support missions, is therefore established by his testimony, and it does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. The remaining issue is whether the Veteran’s current tinnitus is related to the acoustic trauma. In December 2013, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s tinnitus is less likely than not related to his military service. The examiner reasoned that the Veteran’s tinnitus is due to his post service target shooting and that the Veteran’s reports during the examination that his onset of tinnitus was years after service. In the Veteran’s VA Form 9, he clarified that his ringing in his ear began during the last year of his military service. He affirmed that he had a continuity of symptomatology for tinnitus beginning in service. Furthermore, the evidence of record contains several other statements from the Veteran indicating that he has had ringing in his ears in and since. See, e.g., Veteran’s stated dated September 2013. The Veteran’s recollection of having tinnitus in and since service associated with loud noises is competent and credible, as the Veteran is competent to report factually observable occurrences in service and the timing of the observable symptoms of his disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay testimony along with the other evidence above provides a sufficient basis to conclude that his tinnitus is related to the acoustic trauma he suffered in service. The only evidence weighing against a nexus is the December 2013 VA medical opinion. To this extent, the Veteran disputes the reported history underlying this negative medical opinion. Furthermore, the December 2013 opinion is flawed because it failed to discuss the Veteran’s noise exposure during his combat service. See Reeves, 682 F.3d at 998 (Congress enacted the combat provisions of 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. H.R. Rep. No. 1157, at 3 (1941)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel