Citation Nr: 0725282 Decision Date: 08/15/07 Archive Date: 08/22/07 DOCKET NO. 04-36 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran had active military service from April 1960 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The veteran has tinnitus that is likely related to his military service. CONCLUSION OF LAW The veteran's tinnitus is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the standard for processing claims for VA benefits was changed, effective November 9, 2000, with the signing into law of the Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No. 106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). As the Board's decision constitutes a complete grant of the benefit sought on appeal, there is no further assistance or development required in this case. The veteran's entry physical examination report showed a whispered voice examination which revealed normal hearing acuity of 15/15. He served in the field artillery in service, and exposure to significant acoustic trauma is therefore conceded. His separation examination showed a puretone threshold of 50 decibels at 4000 Hertz in both ears. The veteran was afforded a VA audiological examination in June 2003. He gave a history of bilateral hearing loss and constant bilateral tinnitus since the time of his military service. Examination revealed significant bilateral hearing loss. Because the veteran's service medical records (SMRs) showed normal hearing on service entry and a high frequency hearing loss on separation, the examiner opined that the veteran's hearing loss was at least as likely as not related to military service. However, because there was no medical evidence in the SMRs to support the veteran's claimed tinnitus, the examiner opined that it was not at least as likely as not that the tinnitus was related to military service. In a rating decision dated in July 2003, the RO denied service connection for tinnitus because there was no evidence of tinnitus in the veteran's SMRs, and because of the VA audiologist's opinion that the tinnitus was not at least as likely as not related to his military service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, there is evidence of a current disability in the form of the veteran's subjective complaints of bilateral tinnitus. There is also evidence of acoustic trauma while serving in the field artillery. The Board also finds that there is competent and sufficient lay evidence of a nexus between the veteran's current tinnitus and the in-service acoustic trauma, and will therefore grant service connection. As noted, as a general rule, service connection requires medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza, supra. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). More recently, the Federal Circuit has held that lay evidence can be competent and sufficient to establish a diagnosis when a layperson is competent to identify the medical condition. Jandreau v. Nicholson, No. 07-7029, slip op. at 7 (Fed. Cir. July 3, 2007). Since tinnitus is a medical condition that a layperson is competent to identify, the Board finds that the veteran's lay testimony is competent and sufficient to establish a diagnosis of tinnitus during or immediately after his military service. Thus, with evidence of a current tinnitus disability, evidence of acoustic trauma in service, and competent and sufficient lay evidence of a nexus between the two, the criteria for service connection for tinnitus are met, and the appeal is granted. ORDER Entitlement to service connection for tinnitus is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs