Citation Nr: 18159131 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-32 439 DATE: December 18, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s tinnitus is attributable to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to September 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). As this appeal is being processed and granted under the Board’s “One Touch” program, a transcript of the hearing is not yet in the claims file but will be obtained and added to the claims file at a later time. A. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. In this case, any error in notice or assistance is harmless given the favorable determination. B. Legal Criteria and Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is an “organic diseases of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the present case, the Board finds that the Veteran currently has tinnitus. Tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). During a December 2015 VA examination, the Veteran competently stated that he has tinnitus and the Board finds his statements to be credible. Therefore, there is evidence of a current disability. The Board finds that the Veteran experienced an in-service injury, namely exposure to hazardous noise. He has provided competent, credible, and probative testimony regarding noise exposure during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). For example, in a September 2015 statement, the Veteran reported that while in service he worked around tanks, which resulted in noise exposure from firing of a 120 mm M1 Gun and an Abrams Tank Gun. The Veteran added that the tanks’ arsenal included a M-2 50 Caliber Machine Gun, an M-16 Rifle, and a 9mm Pistol. The Veteran elaborated that the noise was so loud that it would shake his teeth. The Veteran’s service records corroborate his account of in-service noise exposure. For example, the Veteran’s DD-214 lists his military occupational specialty as Abrams Armor Crewman for two years. This confirms that the Veteran was exposed to hazardous noise while working around tanks. Additionally, the DD-214 documents that the Veteran received marksmanship badges for grenades and a 9mm pistol, which shows exposure to hazardous noise during service from firearms. The Veteran’s description of in-service noise exposure is generally consistent with the known circumstances of his military service. Therefore, the second element of service connection is met. What remains to be established is whether there is a relationship between the Veteran’s service and his disability. The Board concludes that the Veteran has provided competent and credible evidence reflecting that he began experiencing tinnitus in service and continued to experience such symptoms after service. For example, at the December 2015 VA examination, the Veteran specifically noted that tinnitus had its onset during service. At his Board hearing, the Veteran reiterated having an onset of intermittent tinnitus in service and continuity of tinnitus since service. The Board finds the Veteran competent and credible with regard to having symptoms of tinnitus in service. There is evidence that he had noise exposure in service. The Board also finds the Veteran’s statements that he has been experiencing tinnitus continuously since his discharge from service to be competent and credible and places great weight of probative value on them. The Board acknowledges that the December 2015 examiner opined that the Veteran’s tinnitus was not related to his service. The examiner based this opinion solely on a lack of objective evidence of acoustic trauma during service. However, the examiner did not take into account the Veteran’s competent and credible statements regarding in-service noise exposure and continuity of tinnitus since service. Thus, the Board places little weight of probative value on the examiner’s opinion that the Veteran’s tinnitus is not related to his service. In light of the foregoing, the Board is satisfied that the criteria for service connection for bilateral tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel