Citation Nr: 18131264
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-09 355
DATE:	August 31, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
FINDING OF FACT
The evidence is at least evenly balanced as to whether the Veteran’s current tinnitus was incurred in service.
CONCLUSION OF LAW
With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1989 to August 1993.
This matter came to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
1. Tinnitus
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).
When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.”  38 U.S.C. § 1154 (b).  This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”).
Service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258 (2017) (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).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307 (a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
The Veteran seeks service connection for tinnitus.  He contends that such disability is due to military noise exposure.  For the reasons explained below, and affording the Veteran the benefit of the doubt, service connection for tinnitus is warranted.  
In this case, the evidence of record indicates that the Veteran currently has a tinnitus disability.  Specifically, an October 2014 private treatment record and December 2014 VA examination report shows a diagnosis of tinnitus.  Based on this evidence, the Board finds that the first element of service connection has been met.  
The Veteran’s service treatment records are negative for complaints, treatment or findings of tinnitus.  At his July 1993 separation examination, no pertinent abnormalities were noted.  On the accompanying Report of Medical History, the Veteran denied having ear trouble.  
The Veteran has reported in-service exposure to loud military noises from machine guns, small arms rifles, missiles, mortars, C4 controlled detonations, grenade launchers, aircraft cover bombing and helicopter cover fire, aboard an aircraft carrier.  He also noted flight deck noise of loud sirens and alarms.  See e.g. December 2014 VA examination.  
In a March 2016 statement, the Veteran asserted that he has constant ringing in his ears and it has gotten progressively worse over the past 25 years since Desert Storm.  He stated that he was a machine gunner on light armored vehicle (LAV) in the Persian Gulf War, and they also fired Tow missiles and many explosives.  
The Veteran’s DD-214 Form confirms the he is in receipt of the Combat Action Ribbon for his service in Dessert Storm and that his military occupational specialty was administrative clerk.  Thus, the evidence shows that the Veteran engaged in combat with the enemy.  See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (list of Decorations that are evidence of combat participation).
The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred.  Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)).  The Board therefore accepts the Veteran’s statements that he suffered acoustic trauma in service.  Moreover, the fact that the claimed cause of the Veteran’s tinnitus, i.e., acoustic trauma from machine guns, small arms rifles, missiles, mortars, C4 controlled detonations, grenade launchers, aircraft cover bombing and helicopter cover fire, is therefore established by his statements, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service.  Reeves, 682 F.3d at 999.
In December 2014, the Veteran underwent a VA medical examination.  The examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  The examiner further opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service.  The basis of the examiner’s rationale was that the Veteran’s MOS indicates that he was an administrative clerk, which has a low probability of noise exposure.  The examiner noted that there was no evidence of in-service hearing loss bilaterally as per VA standards.  The examiner further noted that the audiological findings evidenced no shift in audiometric threshold data bilaterally from enlistment to separation audio evaluations. 
Here, the VA examiner opined that he Veteran’s hearing loss, and by default his current tinnitus were not due to military noise exposure.  The VA examiner failed to consider the Veteran’s combat service and lay statements, to include his assertion of tinnitus symptoms in and since military service.  For these reasons, the Board finds the December 2014 VA opinion is of little, if any probative weight.  
The Board finds that, given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay testimony along with the other evidence above regarding the Veteran’s duties in service provides a sufficient basis to conclude that his current tinnitus is related to the acoustic trauma he suffered in service.  There is no other probative evidence of record which attributes the Veteran’s current tinnitus to any other cause than in-service noise exposure.  Based on the evidence of record, and resolving reasonable doubt in his favor, the Board finds that the Veteran currently has tinnitus that was incurred during his active military service.  Thus, service connection for tinnitus is warranted.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Walker, Associate Counsel 

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