Citation Nr: 1125299 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 06-22 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for tinnitus. In a June 2008 decision, the Board also denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2010 memorandum opinion, the Court vacated the Board's decision, but only with respect to this issue, and remanded it for further proceedings consistent with the opinion. FINDING OF FACT Tinnitus had its onset in service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this decision, the Board grants service connection for tinnitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Service Connection The Veteran seeks service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). Service treatment records are negative for complaints or clinical findings of tinnitus. The Veteran's DD 214 shows a military occupational specialty of senior vehicle truck driver and further indicates that the Veteran received an Expert M-14 Citation. In a June 2006 statement, the Veteran reported that he suffered acoustic trauma in service from participating in weapon-firing competitions. The Veteran has submitted copies of audiological evaluations performed in the course of civilian employment; however, there are no findings of tinnitus in these records. Copies of medical records associated with a Social Security Administration disability claim are also of record, but are not pertinent. The Veteran was afforded a VA audiological examination in July 2007 to determine the nature and etiology of his tinnitus. He reported military noise exposure from use of machine guns and serving on the rifle team. He also reported civilian noise exposure from working at a steel plant both prior to and after military service. He denied recreational noise exposure. He also reported symptoms of constant unlocalized 'cricket sounds' that had been present since military service. The examiner stated that these symptoms were significant enough to be considered "tinnitus." The examiner further opined that the tinnitus is less likely as not due to military service. The rationale was that the service treatment records were negative for any complaints, treatment, or diagnosis of tinnitus. As an initial matter, the Board notes that the July 2007 VA examiner has established a current tinnitus disability. The Board has considered the Veteran's statements concerning in-service noise exposure, as well as his documented duty assignment. In giving due consideration to the circumstances of his service, military noise exposure is conceded. 38 U.S.C.A. § 1154(a). The Board also notes that the Veteran is competent to state that he has experienced tinnitus since service and given the disability at issue, the Veteran's statements are credible. Thus, the only remaining requirement to establish service connection is evidence of a nexus between the current tinnitus and the in-service noise exposure. The Board has considered the July 2007 VA opinion, which is against a nexus between the Veteran's in-service noise exposure and his current tinnitus. However, it appears that the only rationale offered for the opinion was that tinnitus is not noted in the service treatment records. The Board, however, notes that a medical opinion based solely on the absence of documentation in the record is inadequate, and an examiner must take into account a veteran's reports of injuries and symptoms. See Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the service treatment records to provide a negative opinion). Absent the VA examiner's opinion, the only remaining evidence of a nexus is the Veteran's credible report of continuity of symptoms since service. Thus, the Board finds that the required nexus has been established. For the Veteran to prevail in his claim, it must only be demonstrated that there is an approximate balance of positive and negative evidence. In this case, the evidence is at least in equipoise. Therefore, reasonable doubt is resolved in favor of the Veteran and service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b). ORDER Service connection for tinnitus is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs