Citation Nr: 1808560	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-19 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Byron Dinkla, Agent


ATTORNEY FOR THE BOARD

T. Winkler, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from January 1975 to February 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 

This claim was previously remanded in November 2015 for additional development.


FINDING OF FACT

There is competent and credible evidence showing the Veteran's tinnitus manifested in service with continuity of symptomatology since service.
.

CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). As this decision is completely favorable to the Veteran, there is no reason to belabor the impact of the VA's duty to notify and assist on these matters. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

II. Legal Criteria, Factual Background, and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Walker 
v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. 
§§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease is not shown to be chronic during service or within the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran contends his tinnitus began in service as a result of noise exposure.

The Board finds there is competent and credible evidence showing the Veteran's tinnitus manifested in service with continuity of symptomatology since service.

Service treatment records are silent for reports of tinnitus or ringing in the ears in service. 

In December 2011, the Veteran reported he has had almost constant buzzing in his ears since service. He reported working as a heavy equipment operator and often working without hearing protection. 

The May 2012 VA examiner opined the Veteran's tinnitus was less likely than not due to acoustic trauma in service because the separation examination revealed normal hearing. He stated he could not opine on the etiology of the Veteran's tinnitus without resorting to speculation. 

The Board gives great probative weight to the lay statements of the Veteran that his tinnitus began during service and has continued since that time. The Veteran is competent to report ringing in his ears and the onset of the symptoms. The Board finds these statements credible, as the statements are consistent with the Veteran's DD-214 showing his military occupational specialty (MOS) code being a heavy equipment operator and tank truck driver, in addition to earning a Rifle Marksman Badge. The Veteran's statements are consistent with his later diagnosis of tinnitus.

The Board gives low probative weight to the May 2012 VA examination opinion that the Veteran's tinnitus is less likely than not related to service. The examiner based his opinion on the lack of mention of tinnitus at his separation examination. The examiner did not address the Veteran's competent reports of tinnitus since service and continuing since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). 

The Board finds there is competent and credible evidence showing the Veteran's tinnitus manifested in service with continuity of symptomatology since service. Resolving any doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus loss is granted. 



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs