Citation Nr: 1301372	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  10-27 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty from June 1954 to June 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

Please note 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

The evidence of record is at least in equipoise as to whether the Veteran's currently manifested tinnitus is etiologically related to his military service.


CONCLUSION OF LAW

Resolving the benefit of the doubt in the Veteran's favor, tinnitus was incurred in or as a result of active military service.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA 's Duties to Notify and Assist

As the Board's decision herein to grant service connection for tinnitus is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009)) and the implementing regulations.
Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303(a) (2012).  As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Caluza v. Brown, 1 Vet.App. 498 (1995).  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2012).  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) (2012).

The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  See Clyburn v. West, 12 Vet.App. 296 (1999).

Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the 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)..  In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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.

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence.  The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so.  See Owens v. Brown, 1 Vet. App. 429 (1995).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

The Veteran asserts that he is entitled to service connection for tinnitus that resulted from in-service noise exposure while serving in Vietnam and has been constant since his military service.

The Veteran's DD-Forms 214 indicated that he served in the United States Air Force from June 1954 to June 1974 and the United States Army from June 1969 to June 1974.  The Veteran's personnel records further indicated that he served two tours in Vietnam from January 1968 to January 1969 and from October 1970 to September 1971.  The records indicate the Veteran was awarded the Vietnam Service Medal and the Vietnam Campaign Medal and had a military occupational specialties (MOS) of photograph interpreter technician, missile electronic equipment technician, ground-to-air missile checkout equipment repairman, and basic area navigation systems mechanic.  The Veteran's service treatment records note that he was diagnosed with tinnitus in an August 1971 treatment note, although his April 1972 annual medical examination as well as his April 1974 separation examination fail to note any complaint or diagnosis of tinnitus.  

The Veteran was afforded a VA audio examination in October 2009.  The Veteran reported continuous ringing in both ears.  The examiner noted that the Veteran's military noise exposure included fire fights, nightly combat mortar and rocket attacks during the Tet Offensive, and combat hotel explosion in 1971 in Vietnam.  The Veteran specifically noted that he had experienced the ringing in his ears since the hotel explosion in 1971.  The Veteran reported no post-service occupational or recreational noise exposure.  The Veteran was diagnosed with bilateral tinnitus.  After a review of the Veteran's claims file as well as a physical examination, the examiner opined that there was no evidence to support development of hearing loss during active duty and as such the associated tinnitus was also not the result of active duty.  As a rationale, the examiner noted the absence of complaint or diagnosis in the Veteran's service treatment records as well as the absence of post service complaint until the Veteran's claim for compensation.  

At the outset, although the file contains references to the Veteran's combat status, this has not been established by virtue of any awards or decorations and has not been verified through any other official means.  Therefore, for purposes of this decision, the provisions of 38 U.S.C.A. § 1154(b) will not be applied.  However, as will be explained herein, this is not prejudicial to the Veteran in this case as the ultimate disposition of this case is favorable even without application of the aforementioned provisions.  

As noted above, generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and 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).

As noted above, the Veteran is currently diagnosed with bilateral tinnitus.  Moreover, the Board notes that in certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003).  Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet.App. 370 (2002).  In this case, the Veteran has acknowledged having subjective symptoms indicative of tinnitus, including ringing in the ears.  As such reports are within the Veteran's competency to make-given the subjective nature of the condition, and as the Board has no reason to question the Veteran's credibility on this point, a current diagnosis of tinnitus is established. 

With respect to second Hickson element, the Veteran's service treatment records indicate that tinnitus was diagnosed in an August 1971 treatment report.  While there is no indication that the Veteran continued to report tinnitus for the remainder of his active duty service, the Board notes that the Veteran has maintained that he started hearing ringing in his ears after the hotel explosion he witnessed in 1971 while serving in Vietnam.  The Veteran's contentions are consistent with the objective evidence.  Also, as previously established he is competent to describe observable symptoms such as ringing in the ears.  See Falzone v. Brown, 8 Vet.App. 398, 403 (1995).

In addition, the Board points out that the RO has already conceded that the Veteran experienced in-service noise exposure as noted in the October 2009 rating decision.  The Board has no reason to question the credibility of the Veteran's statements and testimony as to this issue and it is noted that acoustic trauma would certainly be consistent with the Veteran's documented duties during service.
Under 38 C.F.R. § 3.303(b), one method of establishing the third Hickson elements is through a demonstration of continuity of symptomatology. See Barr, 21 Vet.App. 303 (2007); see Savage v. Brown, 10 Vet.App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet.App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In addition to providing competent and credible statements to the effect of sustaining acoustic trauma in service, again, the Board notes that the Veteran has also indicated that he has experienced symptoms of tinnitus since 1971.  He has repeatedly described having chronic symptoms of tinnitus since the 1971 hotel explosion during service.  In this regard it is important to acknowledge that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997) (citing Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991).

In terms of competency, 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 Barr v. Nicholson, 21 Vet.App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (tinnitus).  Given the already discussed subjective nature of tinnitus, it is clear that the Veteran's lay accounts of chronicity and continuity of tinnitus since service are competent.  Moreover, in light of type of acoustic trauma he sustained in service as well as the in-service diagnosis of tinnitus, it does not strain credibility to conclude that symptoms of tinnitus arose in service and continued thereafter.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

The Board observes the negative opinion by the October 2009 VA examiner.  This opinion was flawed in numerous ways.  Initially it appears that this opinion was based almost entirely on clinical evidence on file (or the absence thereof), failing to account for and discuss the Veteran's lay statements, to include the credibility thereof.  In addition, the examiner based the opinion on the lack of complaint or diagnosis of tinnitus during active duty service, failing to note the August 1971 service treatment report which clearly notes a diagnosis of tinnitus.  Hence, this opinion was made based on an inaccurate factual premise.

Accordingly, with respect to crucial Hickson element (3), nexus or relationship, in view of the Veteran's well-established in-service noise exposure, the Board finds his lay assertions regarding continuity and chronicity of tinnitus in and since service to be similarly competent and credible; indicative that he has had bilateral tinnitus since service as a result of acoustic trauma in service.  The Board finds that at the very least, there exists an approximate balance of evidence for and against the Veteran's tinnitus claim.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for tinnitus is warranted.


ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs