Citation Nr: 0809902 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-34 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from March 1973 to March 1977. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). In March 2006, the Board issued a decision which denied the veteran's claim of entitlement to service connection for tinnitus. Thereafter, he appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court remanded the matter for further adjudication consistent with a June 2007 Joint Motion. The March 2006 decision with regard to the issue of entitlement to service connection for tinnitus was subsequently vacated by the Board in September 2007 and remanded for additional development. FINDING OF FACT The evidence of record shows that the veteran's tinnitus is related to military service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the veteran's claim for service connection for tinnitus as the Board is taking action favorable to the veteran by granting service connection for this disorder. As such, this decision poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The veteran's service medical records are negative for any complaints or diagnoses of tinnitus. After separation from military service, the veteran submitted a March 2003 Application for Compensation in which he reported that his tinnitus began in October 1973. A September 2003 VA audiological examination report stated that the veteran's claims file had been reviewed. The veteran complained of intermittent, bilateral tinnitus which began in 1998. The veteran stated that he served as a jet engine mechanic in the Air Force for 4 years during which "double hearing protection was worn 100% of the time." The veteran denied any post-service noise exposure. The veteran attributed his tinnitus to his period of military service. The examiner opined that [d]espite the veteran's claim that his tinnitus is related to military service, due to the delay of onset of symptoms until 1998 and no evidence in the service medical records to support a tinnitus claim, it is my opinion that it is not at least as likely as not that tinnitus is related to military service. In a February 2004 notice of disagreement, the veteran stated that he had obtained a copy of the September 2003 VA audiological examination report. He stated I noticed in [the] report that [the examiner] noted that I had reported the onset of hearing loss only about five years ago. I do not remember ever having made such a statement. . . . With regard to the claim for tinnitus (ringing in the ears), I have had this condition ever since service even with utilizing ear plugs with muff type of hearing protection. Again, [the examiner] presented a statement in which she reported my having claimed onset about five years ago in 1998. I do not remember ever having specified a date of onset. The tinnitus has been a problem ever since my active duty. In a July 2004 VA addendum to the September 2003 VA audiological examination report, the examiner stated that "[d]uring the original case history session from September 2003, the veteran reported noticeable onset of hearing loss and tinnitus symptoms to be around 1998 (it is noted that the veteran now disagrees with these statements). However, the veteran's original statements must be conceded as most accurate and most credible." The examiner then provided an opinion that stated that the veteran's tinnitus was not at least as likely as not related to military service, with the reported onset date of 1998 listed as a specific basis for this opinion. In a September 2004 Appeal to the Board, the veteran described in detail the noise he was exposed to during active military service. In summary, as part of his job as a jet engine mechanic, he was regularly exposed to extremely high levels of noise from operational airplane engines. He reported that he used ear protection whenever it was available, but that that was not always the case. It was not uncommon to be stranded on the flight line without any equipment and hearing protection. A person would be dropped off somewhere to do a job and later would be next to a running jet. There were many times I would stop working to cover my ears with my hands. I tried to explain all this to the examiner at my audio exam. . . . I stated my hearing loss and tinnitus was from military service and that was the only exposure to acoustic trauma. I have always worked in an office environment through college to the present. She asked me to give a definitive date when the tinnitus began. I told her the hearing loss and tinnitus was from military service. I assumed she recorded the statement in the exam as I stated. A November 2007 VA audiological examination report stated that the veteran's claims file had been reviewed. The veteran complained of tinnitus with an onset around 1973, after he began working on the flight line. He stated that "[e]arplugs were available 100% of the time and worn 70-80% of the time. Ear[muffs] were also available and worn about 30-40% of the time." The veteran denied post-service noise exposure. The examiner opinioned that [i]t should be noted that previous [medical report] entries indicate that the veteran did not report the onset of tinnitus to be until 1998 which was 20+ years post military exposure. . . . Current research does not support a delay on onset of tinnitus symptoms to twenty years post-noise exposure. The veteran did not report tinnitus or hearing loss issues to the VA until 20+ years post-military service. Due to normal hearing at separation from the service, no evidence of tinnitus symptoms or a tinnitus condition documented while in the military, no evidence of permanent acoustic damage, and that the veteran himself stated in the original interview in 2003 that tinnitus did not begin until 1998 (and original, non-inflammatory, and non-confrontational interview statements must be taken as the most reliable) and only after denial of a tinnitus claim in 2004 and 2006 did he claim that the tinnitus began in 1973, it is my opinion that it is NOT at least as likely as not that tinnitus is related to military service. In a February 2008 statement, the veteran addressed the 1998 onset statement in the September 2003 VA audiological examination report as follows: I believe there was a mistake on [the examiner's] part with the answers. She wanted the "date and circumstances of onset for tinnitus and hearing loss". I told her it began in 1973 shortly after beginning work on the flight line not 1998. She asked about the dates of service. I told her 1973 to 1977. She continued with more questions. I answered as truthfully as possible. In conversation with the examiner I considered filing a disability claim in 1998 but did not. This must be where [the] error must [have] occurred. The issue on appeal is an unusual one, as the determination of whether or not service connection is warranted turns almost entirely on the veteran's credibility. A grant of service connection for a disability generally requires medical evidence of a current disability and a relationship to military service. Lay testimony is only competent to the extent that it is limited to a matter that the witness has actually observed and is within the realm of their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Unless the witness is a medical expert, lay evidence alone is usually not sufficient to prove medical diagnosis and causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, medical evidence nearly always trumps lay evidence for the purposes of determining diagnosis and etiology. However, the disability of tinnitus poses unique problems. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Accordingly, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. This is of crucial importance in the case on appeal. The medical evidence of record clearly and consistently shows that the veteran has a current diagnosis of tinnitus. The dispute is over the etiology of the disorder, not its existence. Service connection for tinnitus has been repeatedly denied due to one specific piece of medical evidence. This evidence is the September 2003 VA audiological examination report, in which the veteran was reported to have stated that his tinnitus first occurred in 1998. As this date is over 20 years after separation from military service, the medical examiner who provided all 3 medical opinions of record concluded that the veteran's tinnitus began after military service and was not related to military service. On its surface, these conclusions are reasonable and valid. However, the veteran has consistently and repeatedly asserted that the 1998 date given in the September 2003 report is erroneous. He claims that he told the examiner that his tinnitus symptoms began during military service, and that the date was written down incorrectly, possibly due to confusion about another date that the veteran mentioned in response to a completely different question. The evidence of record includes multiple statements about the date of onset of the veteran's tinnitus. With the exception of the September 2003 report, all of these dates are reported to be during military service. Despite this, the medical examiner and the RO have repeatedly stated that the statement given in September 2003 is the most credible. The reasoning for this is most succinctly explained in July 2004 VA addendum, which stated that "the veteran's original statements must be conceded as most accurate and most credible," and the November 2007 VA audiological examination report, which stated that the "original, non-inflammatory, and non-confrontational interview statements must be taken as the most reliable." Accordingly, the evidence of record shows that the main basis for the multiple medical nexus opinions is the date the veteran reported that his tinnitus symptoms began. It therefore follows that if the veteran's testimony as to the onset of these symptoms during military service was found credible, then the medical nexus opinions would no longer be credible, as their basis would be invalidated. While the Board is not competent to make a medical determination, it is competent to determine the credibility of the veteran's lay statements. As noted above, the basis relied upon by the RO and the medical examiner for using the September 2003 statement instead of any of the veteran's other statements is that it preceded all other statements in time. While this is a worthy method of analysis, it has a fundamental flaw when applied to the particular case on appeal. This flaw is the March 2003 Application for Compensation, in which the veteran specifically stated that his tinnitus symptoms began in October 1973. Accordingly, if the proper method for determining the credibility of the veteran's various statements is the first in time, then the March 2003 statement, not the September 2003 statement, must be given greater weight. This would make the credible date of onset October 1973, which is during the veteran's period of active military service. Even so, the veteran's March 2003 statement about his date of onset could be disregarded if the preponderance of the evidence showed that the September 2003 statement was likely to be the more credible one. However, that is not the case. The veteran has made multiple statements explaining the situation, past and present, and his statements have always been consistent with the evidence of record. The veteran reports that he was a jet engine mechanic, a claim that is consistent with his DD Form 214, which lists his specialty as Aircraft Maintenance Specialist and shows that he served in the Air Force. Furthermore, the veteran states that he was always provided with hearing protection, both earplugs and earmuffs, a claim which is in turn substantiated by the veteran's service medical records. It is of particular interest to note that the topic of hearing protection reveals another inconsistency in the September 2003 VA audiological examination report. That report stated that the veteran reported "double hearing protection was worn 100% of the time." However, the veteran has repeatedly stated otherwise and given specific examples of situations in which it was impossible or impractical for him and his fellow servicemen to wear hearing protection while on duty. In the November 2007 report, the veteran specifically stated that while both earplugs and earmuffs were always available, the former were worn only "70-80% of the time" and the latter were worn only "30-40% of the time." Given the realities of life in military service, and indeed in any area of employment, it is probable that exceptions to the general rules and practices will occur. Finally, the Board notes that the veteran's various statements of record have always been courteous, intelligent, well-written, and well-thought out. There is no indication in the statements that the veteran is being dishonest or untruthful in any way. Indeed, the veteran regularly supplies well-reasoned arguments that are consistent with the evidence of record. Furthermore, the Board notes that the evidence of record shows that the veteran was consistently exposed to high levels of noise during military service and there is no evidence of record that the veteran was ever exposed to excessive noise after separation from military service. Accordingly, based on the totality of the evidence of record, the Board finds the veteran's lay statements that his tinnitus symptoms began during military service to be credible and therefore, are competent evidence as to when his tinnitus began. As such, the basis for the medical nexus opinions which stated that the veteran's tinnitus was not related to military service has been invalidated and these medical opinions are not competent as to when he first began to experience tinnitus. As stated above, the veteran's lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles v. Principi, 16 Vet. App. 370 (2002). While there is no competent medical evidence of record that addresses when the veteran's tinnitus began, his statements alone may be considered competent evidence to make such a determination. Id. at 374. Accordingly, the medical evidence of record shows that the veteran has a current diagnosis of tinnitus and the lay evidence of record shows that it began in military service. Applying the doctrine of reasonable doubt, the Board finds that the veteran's tinnitus is related to active military service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs