Citation Nr: 18153802 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-01 804 DATE: November 29, 2018 ORDER Service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus is found to have begun during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2005 to August 2006, with service under combat conditions. This appeal is before the Board from a February 2012 rating decision. The Veteran testified before the Board at a hearing held in July 2018. A copy of the transcript is of record. Service Connection The Veteran contends that he has tinnitus as the result of acoustic exposure in service. He is shown to have served as a heavy equipment operator under combat conditions and noise exposure is thus consistent with the circumstances of his service. The Board concludes that the Veteran has a current diagnosis of tinnitus that as likely as not began in service and is related to in-service acoustic trauma. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s July 2018 hearing testimony described his exposure to noise from rockets and gunfire on a regular basis while he was in Afghanistan. It was pointed out that his right ear hearing loss was already service connected. He indicated that he began to notice tinnitus while he was still in service and it continued ever since. Transcript pg. 3-5. STRs are silent for any mention of tinnitus. His service personnel records show that following a period of other than honorable (OTH) service from February 1996 to February 1997, he joined the Army National Guard and was activated for service from April 2005 to August 2006 with service in Afghanistan. His MOS during this service was heavy equipment operator and he served under combat conditions with a Combat Action Badge issued. Noise exposure is thus consistent with the circumstances of his service. VA records show that the Veteran was noted to have tinnitus reported in treatment records beginning in 2010. A May 2010 telephone triage noted complaints of ringing in his ears since 2006 when he got out of service. He indicated he didn’t know when it was going to start. The primary care evaluation in June 2010 likewise noted complaints of tinnitus since he got out of service in August 2006 and he wanted this documented in records. He gave a history of noise exposure in service, but wore hearing protection. He was referred for a hearing evaluation in September 2010 with increasing tinnitus complaints. He reported significant noise exposure during service and gave a history of ringing in his ears since 2006 when he got out of service. He scored a 14/40 in the hearing handicap inventory and following examination including an audiological test and physical examination of the tympanic membranes, which appeared normal. His hearing test results were discussed and were noted to have many characteristics of noise induced sensorineural hearing loss and the audiologist found it plausible that the hearing loss was at least in part caused by the noise exposure he experienced during active duty. The September 2010 audiologist recommended the Veteran undergo a VA examination to ascertain the etiology of his tinnitus. Additional records show continued complaints of tinnitus, including a July 2013 VA record which noted complaints of tinnitus and reports that while in service he slept next to a generator in his compound and was exposed to weapons fire and explosions. . Tinnitus continued to be noted in problem lists from 2013 through 2018. The Veteran underwent VA examinations which provided unfavorable or equivocal etiology opinions about the tinnitus. A June 2011 VA examination noted the history of exposure to acoustic trauma, both during his service in Afghanistan, as well as the OTH service period prior to his Afghanistan service. The examiner noted his complaints of tinnitus since 2006 but was unable to determine without speculation whether tinnitus was a result of active duty service without speculation due to a lack of records from his Reserve service. A July 2012 VA examination for hearing loss and tinnitus indicated that the Veteran could not recall when his bilateral tinnitus began. The examiner stated it was less likely than not that his tinnitus began as a result of military noise exposure with a rationale stating that although acoustic trauma was conceded, there was no tinnitus reported in the STRs and he denied having tinnitus in a December 2007 post deployment assessment, which contradicted the history of tinnitus starting in 2006 as reported in the prior VA examination. The examiner then suggested that there was no evidence of acoustic trauma for this reason. The examiner also focused on the fact that he had a hearing loss that pre-existed his Afghanistan period of service in the rationale which stated that it was less likely that tinnitus was due to service but more likely due to presbycusis or some other etiology. The Board finds the June 2011 VA examination too equivocal to be of any probative value and the July 2012 VA examination to be of limited probative value, as the examiner gives a somewhat contradictory opinion as to whether the Veteran had acoustic trauma, which the VA conceded. The examiner also appeared not to consider the evidence in the 2010 medical records which were noted to give a history of tinnitus beginning shortly after his return from Afghanistan in 2006. The report of a June 2018 private audiology opinion provided a favorable opinion regarding the etiology of the Veteran’s tinnitus, stating it is at least as likely as not it is the result of acoustic trauma in service. The opinion included attached results and recommendations of audiology testing done, as well as a review of the December 2014 Statement of the Case which conceded acoustic trauma based on his MOS. The rationale for the favorable opinion was based on the Veteran’s conceded acoustic trauma in service including from his MOS as heavy construction equipment operator and his service in Afghanistan, coupled with findings from a study from Harvard University regarding cochlear nerve degeneration after temporary noise induced hearing loss. In making all determinations, the Board must fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). A lay person is particularly competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus “because ringing in the ears is capable of lay observation.” See Charles v. Principi, 16 Vet. App 370, 374-75 (2002). The balance of the lay and medical evidence reflects tinnitus to be a subjective symptom that began shortly after returning from service where he sustained acoustic trauma per the Veteran’s competent and credible reported history. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the Board finds the lay evidence to be credible as to the onset of tinnitus around the end of service and continuing thereafter, because his statements have been detailed and consistent. The Board therefore finds that the Veteran has tinnitus, and that competent and probative lay evidence indicates that it as likely as not began on or around the time of the established in-service exposure to acoustic trauma and continued thereafter. With this in mind, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Eckart, Counsel