Citation Nr: 0812003 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-25 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE 1. Whether vacatur of the August 20, 2007 decision of the Board of Veterans' Appeals, only as to the issue of service connection for tinnitus, is warranted. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from August 1966 to August 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, that, in pertinent part, denied entitlement to service connection for tinnitus, a lumbar spine disability, and a bilateral knee disability. In May 2007, the veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of his testimony is associated with the claims file. At the hearing, the veteran withdrew from appellate status the issues of service connection for a lumbar spine disability and a bilateral knee disability. Also during the hearing, the veteran testified that he would provide a nexus opinion from his regular doctor that would link his current tinnitus to noise exposure during combat duty in Vietnam. Hearing Transcript at 3. The veteran also agreed that the nexus opinion would be accompanied by a waiver of RO review of the evidence. Hearing Transcript at 15. The undersigned explained that the Board could not grant the veteran's claim without a medical nexus opinion linking his current tinnitus to noise exposure during service. Id. FINDINGS OF FACT 1. At a May 2007 Board hearing, the veteran indicated his intent to submit a medical opinion, with a waiver of RO review, to support his claim of service connection for tinnitus. 2. Evidence pertinent to the appeal as to the issue of service connection for tinnitus, was received at the RO in May 2007; however, it was not immediately forwarded to the Board for association with the claims file. 3. On August 20, 2007, the Board issued a decision that, in pertinent part, denied entitlement to service connection for tinnitus because the evidence in the claims file at the time the decision was promulgated did not include the medical nexus opinion of May 2007 linking the veteran's current diagnosis of tinnitus to his period of military service. 4. After the August 20, 2007 Board decision was issued, the RO notified the Board that it had in its possession an unconsidered medical nexus opinion that was received in May 2007, with a waiver of RO review of that evidence. 5. The Board's promulgation of the August 20, 2007 decision without consideration of the pertinent medical evidence received at the RO in May 2007 denied the veteran due process of law. 6. The veteran has a diagnosis of tinnitus that is, as likely as not, of service origin. CONCLUSIONS OF LAW 1. The criteria for vacating the Board's August 20, 2007 decision, only as to the issue of service connection for tinnitus, have been met. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2007); 38 C.F.R. § 20.904 (2007). 2. Tinnitus was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacatur At his May 2007 personal hearing, the veteran stated he would submit pertinent medical nexus evidence to substantiate his claim of service connection for tinnitus. The undersigned advised the veteran that the evidence would require a waiver of RO review so that the evidence could be sent directly to the Board for consideration with regard to the pending appeal. The pertinent evidence that was discussed at the veteran's May 2007 personal hearing was received at the RO later that month. It is not altogether clear why the waiver of RO review of such evidence was not immediately associated with the newly submitted evidence; however it is quite clear that the veteran and his representative intended the evidence to be submitted with such a waiver. On August 20, 2007, the Board issued a decision denying, in pertinent part, service connection for tinnitus. The claim was denied because there was no competent medical evidence of a nexus between the veteran's current tinnitus and his military service in the claim file. At the time of the promulgation of the August 20, 2007 decision, the Board was unaware that additional evidence existed at the RO that was pertinent to the veteran's claim because that evidence, received at the RO subsequent to the May 2007 hearing, was not forwarded to the Board. In sum, there was pertinent medical evidence at the RO at the time of the August 20, 2007 decision, and it was the veteran's intention that such evidence be forwarded to the Board and considered at the time of the August 20, 2007 decision. An appellate decision may be vacated by the Board at any time upon the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. 20.904. The Board's August 2007 decision was not based on consideration of all the available evidence. In order to assure due process of law, the August 20, 2007 decision shall be vacated, but only as to the issue of service connection for tinnitus. Under 38 U.S.C.A. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims (Court). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). The merits of the issue set forth above are considered de novo in the decision below. II. Notice and Assistance Given the favorable nature of the Board's decision on the issue of service connection for tinnitus, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. III. Service Connection The veteran seeks service connection for tinnitus. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran contends that his current tinnitus is related to service, and specifically to the acoustic trauma he experienced as a radioman in combat situations. The veteran's service medical records do not show complaints, treatment, or diagnosis of tinnitus in service. The initial post-service documentation of tinnitus is contained in the report of the February 2005 VA audiology examination. In the report of the VA examination, the veteran indicated a periodic airplane/wind-like noise and, at other times, a ringing in each ear that lasts several minutes. Following the examination which included a review of the veteran's claims file, the VA audiologist concluded that due to the fact that the veteran's hearing was normal in 1969 and continues to be normal, and that the veteran first noticed tinnitus 10 years prior, and that there was no documentation of complaints of tinnitus in the claims file, the veteran's tinnitus was not related to his military service. Notwithstanding the lack of evidence of tinnitus during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The question then is whether the evidence is at least in equipoise as to the question of whether the veteran has tinnitus that is related to service. At the veteran's personal hearing in May 2007, he testified that he was exposed to excessive noise during service. More specifically, the veteran testified that he was exposed to acoustic trauma from artillery fire, mortars, rockets, helicopters, and radio frequency noise. The veteran testified that he was not exposed to acoustic trauma outside of military service, and that the loudest noise he ever heard was two rockets that hit/detonated close to him during service. The second-loudest noise that he had ever heard was the M-60 noise right next to his ears during service. Ten days after the veteran's personal hearing, his private physician submitted a memorandum on the veteran's behalf. The memorandum, received at the RO in May 2007, noted that the veteran reported that the ringing in his ears began during service in Vietnam. The physician opined that the veteran's bilateral tinnitus was likely a direct result of his active military service in which he was exposed to incoming mortar rounds, artillery fire, small arms fire, and high frequency noises from being a radio controller, including guard duty, and overall close exposure to artillery pieces. In sum, there is competent evidence that weighs in favor of the veteran's claim, and there is competent medical evidence that weighs against the veteran's claim. The evidence favoring the veteran's claim comes from the veteran's own testimony that his tinnitus began during service, as well as the opinion from his family physician that the veteran's tinnitus was likely a direct result of in-service noise exposure. Regarding the veteran's own testimony, he can certainly attest to factual matters of which he had first-hand knowledge, e.g., ringing in the ears and exposure to loud noises in a combat environment. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Likewise, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). Importantly, the veteran's family physician specifically noted that the veteran reported that the ringing in his ears began while he was in Vietnam during service, and opined that the current tinnitus was related to the noise exposure during service. Thus, the veteran's testimony is supported by competent medical evidence. Weighing against the veteran's claim is the opinion of the VA examiner in February 2005, who did not believe there was a relationship between the veteran's current tinnitus and his military service because there was no complaint or finding of such during service. In conclusion, the evidence for and against service connection for tinnitus is in relative equipoise; that is, the evidence demonstrating that the veteran's tinnitus is related to service is equally weighted against the evidence demonstrating other etiology. Resolving reasonable doubt in the veteran's favor, as the law requires, it is at least as likely as not that the claimed tinnitus is linked to service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for tinnitus. ORDER The Board's decision of August 20, 2007, only as to the issue of entitlement to service connection for tinnitus, is vacated. Service connection for tinnitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs