Citation Nr: 1808744 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-34 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to December 2005. These matters come before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that rating decision the RO denied service connection for tinnitus. FINDING OF FACT The Veteran served in combat and has tinnitus which is related to his service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(d), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he has tinnitus as a result of noise exposure during service. He reports that during his combat service in Iraq he was exposed to noise from gunfire and explosions. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. If a veteran engaged in combat with the enemy in service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in such combat will be accepted as sufficient proof of service connection, if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. VA shall resolve every reasonable doubt in this regard in favor of the veteran; however, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's service treatment records do not reflect any report of tinnitus during service. In September 2005 he completed a post-deployment health assessment after completion of a yearlong deployment in Iraq. His assembled service treatment records do not include a report of any examination at separation from service. In August 2009 the Veteran submitted a claim for service connection and VA disability compensation for several disorders, including tinnitus. In a May 2010 statement, he reported that he was involved in numerous confrontations with the enemy, and noted that he was awarded the Combat Infantry Badge. The Veteran's service discharge certificate, DD Form 214, shows that his specialty was infantryman and he was awarded the Combat Infantry Badge. He served in Iraq for a year in 2004 and 2005. The service information confirms his report that he engaged in combat with the enemy. On VA audiology examination in January 2010, the Veteran reported that during his combat service in Iraq he was exposed to noise from weapons fire and explosions, and that he did not wear hearing protection. He stated that after service he worked in homeland security at a port. He related that he first noticed ringing in his ears about a year after service. The examiner noted that the Veteran did not have recurrent or constant tinnitus. The examiner expressed the opinion that the Veteran's claimed tinnitus was not caused by or a result of his service. In a December 2012 statement, the Veteran wrote that his exposure in service to combat, including considerable gunfire, could reasonably be expected to cause tinnitus. In the 2010 VA examination he stated that he first experienced tinnitus about a year after his service. The 2010 VA examiner provided an opinion against a nexus between events in service and current tinnitus. The examiner concluded that the ringing in the ears that the Veteran began to experience after service is not related his noise exposure during service. Considering the Veteran's engagement in combat with the enemy, the Board accepts his account of exposure in service to noise from weapons fire and explosions. In the 2010 examination he stated that he first experienced ringing in the ears a year after his service. The Veteran was exposed to combat noise in service, but by his accounts he did not experience tinnitus directly after the noise. He has, however, indicated that tinnitus manifested within one year of service separation. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service acoustic trauma and several reports of onset within one year of his service separation with continuous symptoms thereafter. As such, the Board concludes that entitlement to service connection is warranted. In reaching that conclusion, the Board acknowledges that the 201 VA examiner did not find a link between the Veteran's tinnitus and service. That finding, however, was based on the Veteran's normal hearing acuity and did not account for the above Court finding that tinnitus may be presumed where there was in-service acoustic trauma and manifestation to a compensable level within one year of service separation. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs