Citation Nr: 1304202 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-36 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1972 to October 1979, and from January 1991 to July 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in part, denied the Veteran's service-connection claim for tinnitus. The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue. In September 2012, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Acting Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's current tinnitus disability had its onset in, or is otherwise related to, his period of active duty service dating from January 1972 to October 1979. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, tinnitus was incurred during the Veteran's initial period of active duty military service dating from January 1972 to October 1979. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The RO sent the Veteran VCAA notice letters addressing his tinnitus claim in November 2008, August 2010 and October 2010. The Board need not discuss in detail the sufficiency of these letters in light of the fact that the Board is granting the Veteran's claim. Any potential error on the part of VA in complying with the provisions of the VCAA has been rendered moot by the Board's grant of the benefit sought on appeal. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has retained the services of a representative, and he testified before the undersigned at a September 2012 hearing. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (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. Analysis In essence, the Veteran asserts that he has a current tinnitus disability that had its onset during his initial period of active duty military service from 1972 to 1979, and has continued to the present day. In particular, the Veteran contends that he experienced regular in-service acoustic trauma in performance of duties as a ground surveillance radar crewman, which included listening to buzzing radar sounds through headphones for extended periods of time. See the September 2012 hearing transcript, pages 2, 3 and 6. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden, 381 F.3d at 1167. It is undisputed that the Veteran has a current diagnosis of bilateral tinnitus. See the December 2008 VA examiner's report, page 2. Accordingly, element (1), current disability, is satisfied. With respect to element (2), in-service disease or injury, the Veteran's service treatment records do not show that the Veteran complained of, received treatment for, or was diagnosed as having any tinnitus disability during his initial period of active duty service. Notably however, his service records do show that the Veteran experienced hearing loss during service that was "probably noise induced." See the Veteran's September 25, 1975 ENT Consultation Sheet. As noted above, the Veteran asserts that he suffered injury to his ears in service through exposure to regular acoustic trauma in performance of his duties as a radar crewman. The Veteran is certainly competent to describe his in-service experiences, and the Board finds no reason to doubt the Veteran's credibility, especially in light of the fact that his DD-214 confirms service as a ground surveillance radar crewman, and that his in-service treatment records clearly demonstrate in-service injury to the ears through noise exposure. Accordingly element (2), in-service injury, is satisfied as well. With respect to element (3), nexus or relationship, there are conflicting medical opinions of record addressing the etiology of the Veteran's tinnitus. Against the Veteran's favor is the opinion of the December 2008 VA examiner, who pertinently opined that it is not likely that the Veteran's tinnitus is related to military acoustic trauma. By way of rationale, the examiner relied solely on the Veteran's own report that his tinnitus had its onset "at least 10 years" prior to the examination. "Given delay in onset," the examiner determined that the Veteran's tinnitus was not related to his active duty service. See the December 2008 VA examiner's report, page 4. The Board notes however that although the December 2008 VA examiner indicated that she did in fact review the Veteran's claims folder, she failed to discuss prior medical findings of a January 1980 VA examiner, Dr. J.W.D., who pertinently diagnosed the Veteran as having tinnitus less than three months following his separation from service. Dr. J.W.D. pointed out at that time that the Veteran "was exposed to hum and static noise during radar calibrations to which he attributes hearing difficulties as noted for the past 6 years or so." See the January 9, 1980 report of Dr. J.W.D. Supporting service connection is a January 2011 opinion of Dr. S.M.G., who after reviewing the record and examining the Veteran determined that the Veteran's tinnitus is in fact related to his military duty. See the January 18, 2011 treatment report signed by Dr. S.M.G. He did not however provide any supporting clinical rationale for this conclusion. Just as the Veteran is competent to report having exposure to acoustic trauma in service, he is also competent to report experiencing roaring in his ears since this exposure that has continued to the present day. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, 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, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether or not a 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). The Board additionally finds no reason to call the Veteran's credibility into question with respect to his reports of in-service onset of tinnitus symptomatology, and of ongoing ringing or roaring in his ears from that time to the present day. As discussed above, the Board has already found that the circumstances of the Veteran's duties as a radar crewman would likely have exposed him to acoustic trauma during his period of active duty service. In addition, the Veteran's current bilateral hearing loss disability has already been medically attributed to this in-service acoustic trauma, and the RO has duly awarded the Veteran service connection for such disability. See the RO's February 1980 rating decision. Further, although the December 2008 VA examiner opined against a relationship between the Veteran's in-service noise exposure and his current tinnitus disability, she did so without providing an adequate explanation as to why this was the case, and failed to address key medical evidence of record [i.e., Dr. J.W.D.'s 1980 diagnosis of tinnitus] that weighs strongly against her finding that the Veteran's tinnitus had delayed onset following his separation from service. While Dr. S.M.G.'s January 2011 positive nexus opinion lacked a supporting clinical rationale, his medical conclusion was nevertheless consistent with the Veteran's own lay assertions, and is bolstered by Dr. J.W.D.'s January 1980 diagnosis of tinnitus. In light of the Veteran's competent and credible lay statements as to his current tinnitus symptoms and his estimation as to when these symptoms began, his January 1980 tinnitus diagnosis, and the positive and negative medical opinion evidence discussed above, the Board finds that the evidence of record for and against the Veteran's tinnitus claim is at the very least in relative equipoise. When the evidence for and against the claim is in 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, the benefit-of-the-doubt rule is applicable in this case, and a relationship between the Veteran's current tinnitus disability with his initial period of active duty service is established by a showing of continuity of symptoms. Element (3) is therefore satisfied, and the benefit sought on appeal is allowed. ORDER Service connection for tinnitus is granted. ____________________________________________ Nathaniel J. Doan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs