Citation Nr: 1807892 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-38 507 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2014 and December 2016 issued by Department of Veteran Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2016 the Veteran testified at a Board videoconference hearing before the undersigned Veteran's law judge. A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence reasonably shows that the Veteran's tinnitus is related to his service and noise exposure therein. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board is granting the Veteran's claim seeking service connection for tinnitus, there is no reason to belabor the impact of the VCAA on that matter; any notice defect or duty to assist failure is harmless. The Veteran contends that his current tinnitus is related to his military service and, in particular, to noise exposure from his work as an aircraft mechanic. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (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. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time post service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); see also Fountain v. McDonald, ---Vet.App. ----, No. 13-0540 (Feb. 9, 2015) (holding that section 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an organic disease of the nervous system). Service connection may be established for these chronic diseases by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service treatment records are silent for any complaints, treatment, or diagnoses related to tinnitus. Notably, there were no findings or complaints noted at separation related to hearing loss, tinnitus, or ear, nose, or throat (ENT) problems. Post service treatment records do not reflect any complaints of tinnitus. However, in December 2011, the Veteran reported tinnitus symptoms and hearing loss. His private provider diagnosed him with tinnitus and noted a history of such. On March 2014 VA examination, the Veteran reported that he did not know the specific date or circumstances of onset of his tinnitus, but that he felt "like he has had problems with his ears since 1964." He indicated that it was not a ringing but a buzzing sound. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure as the Veteran's hearing was within normal limits bilaterally at separation and there were no complaints of or report of hearing difficulties or tinnitus in his service treatment record. At the outset, the Board notes that it is not in dispute that the Veteran currently has a diagnosis of tinnitus, as such was diagnosed by his private physician in December 2011 and the VA examiner in March 2014. Furthermore, the Board notes that the Veteran is competent to self-diagnose simple medical conditions such as tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Veteran's service records confirm that he served as an aircraft mechanic. Therefore, in-service noise exposure is conceded. Consequently, what remains for consideration is whether his current tinnitus may be related to his military service or any noise exposure therein. The Board notes that there is nothing in the Veteran's service treatment records showing complaints, diagnoses, or treatment related to tinnitus. However, the Veteran expressly reported in his June 2014 notice of disagreement that his tinnitus was caused by and began in service and that his symptoms have continued and magnified since his discharge. Furthermore, the Veteran stated that subsequent to his service, he did not engage in any activities or employment which would have affected his hearing. As previously noted, the Veteran is fully competent to report observable symptoms such as ringing or buzzing in the ears, and to self-diagnose simple conditions like tinnitus. Moreover, the Board has no reason to question the veracity of his statements, and his reports are afforded significant probative value. Therefore, such statements are competent, credible, and probative evidence that his current tinnitus began during service. In so finding, the Board is cognizant of the March 2014 examiner's opinion that the Veteran's tinnitus was not likely related to his service. However, it notes that the examiner fails to afford the Veteran's explicit endorsement of onset during service, the appropriate weight and attention it deserves. Therefore, the Board finds that the March 2014 nexus opinion is entitled to less probative weight. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence reasonably shows his current tinnitus began during service and has persisted. Thus, service connection for tinnitus is warranted. ORDER The appeal seeking service connection for tinnitus is granted. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs