Citation Nr: 1807532	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-16 850	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel







INTRODUCTION

The Veteran had active duty service in the U.S. Navy from April 1980 to August 2000.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Board notes that in April 2017 the representative contacted VA by phone to notify VA that the Veteran intended to withdraw his appeal.  No written document was ever submitted evidencing intent to withdraw the appeal, however, and as such, the Board must presume that the Veteran does not intend to withdraw the appeal.  See 38 C.F.R. § 20.204(b)(1)(2017).

The Board also notes that although the Veteran requested to testify at a Board hearing at a local VA office, in April 2017, the representative notified VA that the Veteran wished to withdraw his request for a hearing.  Therefore, his request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2017).  To the extent the April 2017 communication does not fully comply with the requirements outlined in 38 C.F.R. § 20.704(e), there is no prejudice to the Veteran since the full benefit sought is being granted in the decision herein.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's current tinnitus began in service.

CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for establishing service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'").

Pursuant to 38 C.F.R. § 3.303(b), if a chronic disease is noted in service (or in the presumptive period) but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

At the outset, the Board finds that the evidence demonstrates that the Veteran has a current tinnitus disability.  The Veteran has reported ringing in his ears and the Board finds his reports both competent and credible.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Veteran also claims that he had in-service noise exposure as a result of being in close proximity to aircraft while working as a plane captain.  His DD-214 shows that during this period, he worked in functional support and administration and successfully completed at least two courses of plane captain training.  The Board finds no reason to question the Veteran's account of such noise exposure and will therefore concede exposure to noise in service, as it is consistent with the Veteran's in-service duties.  See VA Fast Letter 10-35 (Sept. 2, 2010).

The Veteran has claimed in multiple correspondence that he has experienced tinnitus since service and that he reported this at his retirement examination in May 2000.  See February 2012 correspondence, March 2013 notice of disagreement, May 2014 VA Form 9.  His retirement evaluation shows that although he checked a box indicating that he had been experiencing hearing loss, the examiner there noted that his audiograms revealed no higher than a 10 decibel shift at any point during service.  Also of record is a September 2010 VA treatment record indicating that the Veteran reported that his tinnitus first began only two months prior.  No VA etiological opinion was obtained in connection with the claims for tinnitus.

As discussed above, the Veteran is competent to testify as to the existence of ringing in his ears.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"); Charles, 16 Vet. App. 374 (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom).  Although the statement appearing in the September 2010 VA treatment record raises some question as to the credibility of his assertion that he has experienced tinnitus since service, the fact that in-service noise exposure has been established tends to support this assertion.  Moreover, his reports of hearing loss at the retirement examination, while not supported by objective audiological testing, support the proposition that he was experiencing some subjective, hearing-related problems.  In sum, therefore, the Board finds that the weight of the evidence is at least in equipoise.  As such, the Veteran is entitled to the benefit of the doubt.  With reasonable doubt is resolved in favor of the Veteran, service connection for tinnitus is warranted.  38 U.S.C.A. § 5107.  The appeal is granted.


ORDER

Entitlement to service connection for tinnitus is granted.








____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs