Citation Nr: 1301400 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 12-25 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: James G. Fausone, Esq. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran was exposed to excessive noise from aircraft in service as a stinger gunner. 2. Currently diagnosed tinnitus was first manifested during active duty service, and has been continually present since that time. CONCLUSION OF LAW The criteria for service connection of tinnitus have been met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Service Connection Service connection will be granted if it is shown that a veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303; see also, e.g., Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 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). Competent lay evidence is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board finds no reason to doubt the veracity of the Veteran's assertion that he has tinnitus, which he was diagnosed with at his VA audiological examination in August 2010. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears is capable of lay observation). The Veteran has stated and service records verify that during service he worked as a stinger gunner. While in service he has stated he was exposed to a variety of military noise, including aircraft taking off and landing in close proximity to him while he was wearing only ear phones for hearing protection. He also competently and credibly explained he was exposed to weapons fire, fired a live stinger missile, and frequently flew in aircraft while in service. Thus, his exposure to excessive noise has been established. The remaining point the Veteran must show is a nexus between his noise exposure in service and his current tinnitus, either through objective evidence or credible continuity of symptoms. A May 1994 service treatment record reflects that the Veteran complained of ringing in his left year for two years that was an intermittent single tone. The Veteran reported that the tone lasted 30 to 60 seconds and resolved spontaneously for weeks or months. The record reflects that the Veteran's job was on the flight deck in close proximity to aircraft. The assessment was "effects of extended noise exposure." After service, the Veteran stated that he worked as a machinery repairman. In an August 2010 statement he said he wore hearing protection at work and while mowing the lawn. A February 2011 lay statement from the plant manager at the company where the Veteran worked stated that the company was active in maintaining acceptable noise limits based on OSHA standards. Further, he stated that employees were required to wear hearing protection when warranted and he did not recall any nonconformance with the policy. The Veteran was afforded a VA audiological exam in August 2010. The examiner noted review of the Veteran's claims file. The examination reflects that the Veteran reported he experienced constant tinnitus in service that became intermittent after separation from service and then constant again four years ago. The examiner noted that the recent report was different than that which was reported in the May 1994 service treatment record note which stated the Veteran was complaining of intermittent ringing in his left ear for two years. The examiner explained that records show that the Veteran entered service with bilateral high frequency hearing loss and left service with high frequency hearing loss in his left ear only with no change in his bilateral hearing sensitivity. The examiner stated that only seldom does noise cause permanent tinnitus without also causing hearing loss. The examiner opined that the Veteran's tinnitus in service was a temporary condition and that the most likely cause of his present tinnitus is his post-service occupational noise exposure. The Veteran clarified in an August 2010 statement that he has had a continual tone ever since service with intermittent buzzing, clicking, and whooshing sounds. In a May 2011 statement he stated that he had loud, constant tones while working around the planes in service and the level of the tones would reduce when he was on leave. Within a year from separating from service, he stated that he started experiencing tones in both ears that were constant but with intermittent sound levels. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran's statements as to continuity of symptomatology to be credible and more persuasive than the August 2010 VA examination report. The Veteran's contention that his tinnitus began in service is bolstered by service treatment records showing he complained of tinnitus in May 1994, a month before he left service. The Veteran has stated he continued to experience tinnitus after service to the present. The VA examiner's opinion disregards the Veteran's competent and credible account of hearing tones during service and continuously since service. The examiner attributes the Veteran's tinnitus to his post-service occupational noise exposure, although the Veteran contends he wore hearing protection, a contention supported by the lay statement made by the plant manager who supervised the Veteran. Also, the examiner relates that the Veteran's tinnitus became intermittent after separation from service, while the Veteran contends only the sound levels were intermittent. A medical opinion based on incomplete or inaccurate factual premises is not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The competent, credible, and probative lay evidence of record establishes that tinnitus was first manifested on active duty service and has persisted since that time. Although lay persons are not competent to opine as to medical etiology or render medical opinions, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. The sole negative evidence of record, the August 2010 VA examination, is less probative in light of the deficiencies in the opinion offered. The VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. See Gilbert, 1 Vet. App. At 55; 38 U.S.C.A. § 5107(b). Accordingly, as the evidence is in relative equipoise, service connection for tinnitus is warranted based on continuity of symptomatology since service. ORDER Service connection for tinnitus is granted. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs