Citation Nr: 1300933 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 11-07 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Louisville, Kentucky, that, in pertinent part, denied service connection for tinnitus. In October 2011, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Oct 2011 hearing, the undersigned clarified the issue on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in February 2012 at which time it was remanded for additional development. It is now returned to the Board. The Board finds that the agency of original jurisdiction substantially complied with the February 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A June 2010 VA Memorandum shows that there has been a Formal Finding on the Unavailability of Original Service Treatment Records of the Veteran. As such, there is a heightened obligation to assist a claimant in the development of his case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus is manifested as a result of his period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for tinnitus. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the showing of 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 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 (2012). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. The Veteran asserts that he has tinnitus as a result of acoustic trauma experienced during his period of active service. In July 2010, in granting the Veteran's claim of service connection for bilateral hearing loss, VA conceded that he was exposed to loud noises in service while serving in the 57th Tank Battalion. During his October 2011 hearing, the Veteran indicated that he has experienced tinnitus ever since his period of active service, but that his symptoms had become more prominent within the preceding seven years. VA outpatient treatment records dated in September 2009 show that the Veteran reported periodic tinnitus in both ears. The Veteran underwent a VA audio examination in June 2010. It was indicated that his claims file had been reviewed in conjunction with the examination of the Veteran. The Veteran provided a history of in-service noise exposure from tanks and gunfire without the use of hearing protection. Civilian noise exposure was denied. The examiner indicated that there was a claim for tinnitus, but that there was no current complaint of tinnitus. The examiner also indicated that tinnitus was as likely as not a symptom associated with the hearing loss. In rendering an opinion, the examiner concluded that the Veteran did not claim a problem with tinnitus. An addendum to the June 2010 VA examination report provided by the same audiologist in January 2011 shows that it was indicated that VA and private records were not reviewed, but that the Veteran's service treatment records were reviewed. The examiner opined that the Veteran reported having tinnitus that was worse in the right ear, and worse when the wind was blowing. It was reported to occur two to three times daily, lasting a few seconds to a few minutes. It would vary in intensity and was a mid-pitched sound. The examiner indicated that the Veteran stated it began about seven years earlier. The examiner explained that tinnitus was a subjective complaint that could not be evaluated objectively. The examiner added that the Veteran did report that it began after (many years after) his time in service, and that there was no known research evidence to support a claim of delayed-onset tinnitus following an incident of noise exposure. The Board has considered that June 2010 VA examination report, as well as the January 2011 addendum. However, the Board finds that the opinions are of limited probative value. Initially, the Board finds that June 2010 VA opinion to be inconsistent in that in one part of the examination report it is indicated that tinnitus is as likely as not a symptom associated with the hearing loss, and elsewhere in the report it is indicated that the Veteran did not claim a problem with tinnitus. The January 2011 addendum further shows that the examiner indicated that the Veteran's service medical records had been reviewed, however, VA has issued a formal finding that the service treatment records are not available. Additionally, the VA examiner provided an opinion based upon the assumption that the Veteran had reported the onset of his tinnitus seven years earlier, while the Veteran testified that he had a continuity of symptoms since service, but that the symptoms had increased in severity within the preceding seven years. As such, the conclusion of the VA examiner is of limited probative value. See Kowalski v. Nicholson, (a VA examination must be based on an accurate factual premise). In determining whether evidence submitted by an appellant is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran's statements that he has proffered during the course of this appeal are somewhat credible. His March and April 2010 claims for service connection raise the issue of service connection for tinnitus that he noted to be associated with acoustic trauma in service. The Board does not have any reason to conclude that his October 2011 testimony is other than credible, probative, and adds weight to the overall claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); see also Davidson, 581 F.3d at 1316. Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board finds that the Veteran's lay statements describing the onset and chronicity of the tinnitus consistent with his duty with the 57th Tank Battalion. In this regard, the Board reiterates that VA has conceded exposure to acoustic trauma in service. Moreover, while the Board has found the June 2010 VA examination report to be of limited probative value as to whether the Veteran currently has tinnitus, the examination report notes that tinnitus was as likely as not a symptom associated with the hearing loss, for which service connection has been established. As such, in light of the nature of the Veteran's service, his credible account of having tinnitus since service, and resolving doubt in his favor, the Board finds that the tinnitus had its onset as a result of the Veteran's period of active service. While further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion, 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 Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Thus, with resolution of all reasonable doubt in the Veteran' favor, the Board finds that the Veteran has satisfied his burden of showing that he experiences tinnitus as a result of acoustic trauma during service. See Davidson, 581 F.3d at 1316. ORDER Service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs