Citation Nr: 18132358
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-06 296
DATE:	September 6, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
FINDING OF FACT
The evidence is in relative equipoise as to whether the Veteran’s currently diagnosed tinnitus is related to service.
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1970 to January 1972.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  
The Veteran contends that his tinnitus is due to in-service noise exposure.
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a).  Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 
Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). 
A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002). 
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran.
In the present case, the Veteran has current diagnosis of tinnitus.  See November 2012 VA Examination Report.  Thus, the Veteran has satisfied the first Shedden requirement of a current disability.  Additionally, personnel records show that the Veteran served as an armor crewman in a cavalry division.  Thus, the Veteran’s noise exposure is conceded and the second element of service connection is met.  See Shedden, 381 F.3d at 1166-67.  
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Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the evidence indicates that the Veteran’s tinnitus had its onset in service.  The Veteran has asserted that tinnitus started in service and continued since service.  See September 2012 Statement in Support of Claim; November 2012 Examination Report.  A lay person is competent to report tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent).  The Board acknowledges that the November 2012 examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his non-service connected hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  However, the Veteran has continued to report that his tinnitus began in service and continued since then.  The Veteran is competent to testify as to onset of a condition such a tinnitus, and he did so repeatedly through the record.  There is no evidence contradicting his claims.  As such, the Board places probative weight on the Veteran’s statements regarding onset of his tinnitus.  See Charles v. Principi, 16 Vet. App. 370 (2002).  As the evidence of record stands in relative equipoise, the benefit of the doubt is resolved in favor of the Veteran.  Service connection for tinnitus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Kipper, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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