Citation Nr: 1808055 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-15 812A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active duty military service from May 1970 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans (VA) Regional Office (RO), which, in pertinent part, continued its previous denial of service connection for tinnitus because the evidence was not new and material. On the VA Form 9, received in May 2014, the Veteran appears to have requested a hearing. Subsequently, in a June 2015 statement, the Veteran's representative requested to withdraw the Veteran's hearing request. As such, the Board deems the hearing request as withdrawn. Generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156(a). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). In this case, the last prior denial was issued by the RO in an April 2007 rating decision. At the time of the April 2007 rating decision, all of the Veteran's service military personnel records were not associated with the claims file. After a review of the evidence, the Board finds that relevant military personnel records have been added to the record since the last prior decision. As such, the Board will reconsider the claim of service connection for tinnitus on a de novo basis, without the need for new and material evidence. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's current tinnitus is the result of noise exposure during his active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veteran's claim of service connection for tinnitus has been granted, as discussed below. As such, the Board finds that any error related to the VA's duty to notify/assist is moot. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (stating that lay person competent to testify to pain and visible flatness of his feet). Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran asserts that his tinnitus is the result of noise exposure incurred during military service. See, e.g., 6/21/2010 VAF 21-4138. The evidence shows that the Veteran has been assessed with tinnitus. See 08/21/2015, Medical Treatment Record-Non-Government Facility. Thus, a present disability has been established by competent and credible evidence. The Veteran's DD-Form 214 reveals that he was a helicopter repairman. As a helicopter repairman, he was exposed to loud noises, including engine noises without any hearing protection. Furthermore, he was assigned to two artillery groups and heard explosions and rockets several times a week. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran's active service. 38 U.S.C. § 1154(a). Having established a current disability and in-service noise exposure to acoustic trauma, the remaining question is whether the Veteran's tinnitus is due to noise exposure during military service. The Veteran underwent a VA examination in December 2006. The examiner noted that the Veteran's history included exposure to gun fire and artillery fire, aircraft and ground power unit noise while in the military service and he had no excess noise exposure as an ophthalmology surgical assistant after military service. The examiner concluded that the Veteran's current level of and type of hearing loss did not support a claim of tinnitus. The Veteran submitted an audiological evaluation dated in August 2015. The audiologist assessed the Veteran with tinnitus and concluded that he had this disability for over 30 years. After a review of the evidence, the Board finds that service connection for tinnitus is warranted. In this regard, the August 2015 audiologist concluded that the Veteran had tinnitus for 30 years plus. Furthermore, the December 2006 examiner indicated that the Veteran was exposed to artillery fire and aircraft noise while in the military service and had no excess noise exposure as a surgical assistant after military service. The Board acknowledges the negative opinion provided by the December 2006 examiner in which he indicated that the Veteran's type of hearing loss did not support a claim of tinnitus and that the Veteran reported tinnitus occurring for the past five to six years. However, the December 2006 examiner also acknowledged that the Veteran did not have post-service excess noise exposure. Furthermore, the August 2015 audiologist assessed the Veteran with tinnitus and concluded that he had this disability for 30 years plus. In view of the foregoing, and in consideration of the opinions reflected in the December 2006 examination and August 2015 audiologist report, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's current tinnitus is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails and service connection for tinnitus is warranted. See Gilbert, 1 Vet. App. at 53-54. ORDER Service connection for tinnitus is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs