Citation Nr: 1127000 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 08-08 920 ) 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: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from August 1969 to March 1972; his military occupational specialty was aircraft mechanic and repairman. This case comes before the Board of Veterans' Appeals (Board) Board on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in March 2011, and a transcript of the hearing is of record. The Veteran submitted a statement at his hearing withdrawing his claim for service connection for hearing loss but continuing his claim for service connection for tinnitus. A March 2008 rating decision denied entitlement to service connection for tinnitus and, after a notice of disagreement was received, a September 2008 Statement of the Case continued to deny this issue. Although the March 2011 travel board hearing was subsequent to the period for a timely appeal of this issue, the Board will honor the Veteran's expressed intent and will proceed with adjudication of the appeal for service connection for tinnitus. See Percy v. Shinseki, 23 Vet.App. 37 (2009). FINDING OF FACT The evidence is in equipoise as to whether the Veteran has recurrent tinnitus due to his military service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus are approximated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Veteran seeks service connection for tinnitus. He has contended that his exposure to acoustic trauma in service resulted in his current tinnitus. Having carefully considered the Veteran's contentions on her low back in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim for service connection for tinnitus will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, 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 standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's DD Form 214 reveals that the Veteran served in Vietnam and that his duties in service included helicopter repair. His service treatment records do not reveal any complaints of ringing in the ears, and the Veteran's hearing was within the VA definition of normal. Private audiograms dated in November 1974 and June 1980 do not reveal any complaints of tinnitus; the Veteran's hearing on these evaluations was within the VA definition of normal. According to the 1974 report, the Veteran's occupational history included noise exposure with ear protection. The Veteran reported non-occupational noise exposure involving firearms, tractors, chainsaws, motorbike, and aircraft. The Veteran complained on VA evaluation in February 2008, which included review of the claims file, of having had tinnitus for years and of a history of military noise exposure. Occupational noise exposure after service included working for a steel corporation for seven years with the use of a hearing protection device. Audiological testing showed bilateral sensorineural hearing loss. The examiner noted that the service medical records were negative for complaints, treatment, or diagnosis of tinnitus and that the Veteran was exposed to acoustic trauma after service. Consequently, the examiner concluded, based on a review of the claims file and examination of the Veteran, that it was less likely as not that the Veteran's tinnitus was related to service. VA treatment reports for June 2008 reveal that the Veteran was provided hearing aids. The Veteran's complaints on VA hearing evaluation in October 2009 included tinnitus since Vietnam. Service and occupational noise exposure was reported. Bilateral sensorineural hearing loss was diagnosed, which was not considered due to service. The Veteran testified at his travel board hearing in March 2011 that he was exposed to acoustic trauma in service without hearing protection from aircraft engines, enemy rocket attacks, and machine guns; that he had intermittent tinnitus at service discharge but was not asked about it; and that he was provided hearing protection when exposed to acoustic trauma while working after service discharge. Also on file is information submitted by the Veteran on military noise exposure and the implications for hearing loss and tinnitus. There is evidence both for and against the claim for service connection for tinnitus. Although the VA examiner in February 2008 did not find that the Veteran's tinnitus is due to service, the evidence shows that the Veteran was exposed to acoustic trauma in service as a helicopter repairman and that he has contended, including at his March 2011 personal hearing, that he has had tinnitus, intermittent in service, since service. As to whether the evidence is sufficient to demonstrate that the Veteran experienced recurrent tinnitus during active service and chronically thereafter, the Court of Appeals for Veterans Claims has specifically held that a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). There is no evidence of record indicating that the Veteran's subjective report of tinnitus since service is not true. Consequently, the evidence is in relative equipoise. By extending the benefit of the doubt to the Veteran, as required by law, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for tinnitus is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs