Citation Nr: 1301156 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-48 318 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Sullivan & Kehoe LLP, Attorneys at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by which the RO, in pertinent part, denied entitlement to service connection for tinnitus. In November 2011, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran was exposed to excessive noise in service. 2. The Veteran presently suffers from tinnitus. 3. Symptoms of tinnitus have been continuous from service separation to the present. CONCLUSION OF LAW Tinnitus was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran asserts that he suffers from tinnitus, symptoms of which have been present since an explosion in service. The Veteran was involved in a tank explosion in service, and the RO has conceded noise exposure in service due to the Veteran's military occupational specialty as a gunner and armor crewman. The Board, therefore, finds that the Veteran was exposed to excessive noise in service. The Board finds, moreover, that the Veteran suffers from tinnitus. The Veteran is competent to provide evidence regarding the presence of tinnitus, as ringing in the ears is readily apparent through the senses. Charles v. Principi, 16 Vet. App 370, 374 (2002) (holding that lay testimony may establish the presence of tinnitus because ringing in the ears is given to lay observation). Furthermore, the Board finds that the Veteran is credible in his reporting of symptoms of tinnitus. In his July 2008 claim for benefits, on VA examination in October 2008, and during his November 2011 Board hearing, the Veteran asserted that he has suffered from tinnitus since service. The consistency of his assertions over time tends to show they are credible. See Caluza, supra. Furthermore, statements made during medical treatment, such as during the October 2010 VA examination, are particularly credible. See Rucker, 10 Vet. App. at 73 (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value). Finally, at the Board hearing, the Veteran has testified under oath as to the presence of tinnitus. For the foregoing reasons, the Board finds the Veteran's assertions regarding the presence of tinnitus since service credible. During VA treatment in October 2006, the Veteran reported tinnitus shortly after the tank explosion in service. The report when on to say that the "Veteran denies any tinnitus at this time." Based on this statement, the October 2008 VA examiner concluded that the Veteran's tinnitus was unrelated to service despite the fact that the Veteran reported episodic tinnitus since the explosion in service during the October 2008 VA examination. The Board does not credit the opinion of the October 2008 VA examiner, as the Veteran's statement during treatment in October 2006 does not contradict other statements he has made regarding his tinnitus. When looking at the October 2006 statement in the context of the evidence as a whole, it appears that the Veteran was simply stating that he was not experiencing tinnitus at that very moment. He did not necessarily assert that he was no longer suffering from tinnitus. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the assertion made during treatment in October 2006 does not contradict other statements of the Veteran both before and after October 2006 regarding the presence of tinnitus since service. See Wensch, 15 Vet. App. at 367; Wood, 1 Vet. App. at 193 (the Board is charged with the duty to assess the credibility and weight given to evidence). Because the Board finds that the statement made on VA treatment in October 2006 did not mean that he was no longer suffering from tinnitus, the Board does not credit the conclusion of the October 2008 VA examiner regarding the etiology of the Veteran's tinnitus. At that time, the October 2008 VA examiner stated that because the Veteran denied tinnitus in October 2006, any current tinnitus was unrelated to service. The October 2008 examiner's opinion is based on an erroneous interpretation of the Veteran's remarks in 2006. The Board, therefore, accords no probative weight to the opinion of the October 2008 VA examiner concerning the origins of the Veteran's tinnitus. The Board, indeed, is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In any event, the October 2008 medical opinion regarding a lack of nexus between the Veteran's current tinnitus and service is not probative because it is based on an inaccurate factual premise, namely that there was no tinnitus in 2006. Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The only evidence of record that is both competent and probative is that provided by the Veteran in his claim for benefits, on VA examination, and during a November 2011 Board hearing. That evidence reflects both a current diagnosis of tinnitus and continuity of symptomatology between service and the present. Under such circumstances, service connection for tinnitus is warranted. 38 C.F.R. § 3.303; Shedden, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs