Citation Nr: 1304482 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 12-25 052 ) 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: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION 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). The Veteran had active military service from October 1954 to April 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDING OF FACT With resolution of the doubt in favor of the Veteran, the Veteran's tinnitus was caused by service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been approximated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASON AND BASIS FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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). The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. Merits Analysis The Veteran seeks service connection for tinnitus. The evidence is in approximate balance and the claim will be granted. 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(a) (2012). In order to establish service connection for the claimed disorder, generally, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Demonstration of continuity of symptomatology is an alternative method of establishing the second and third elements under 38 C.F.R. § 3.303(b). See Barr v. Nicholson, 21 Vet. App. 303 (2007); 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. See Savage, 10 Vet. App. at 495-96; 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). The benefit of the doubt rule provides that the Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Veteran was a cook in service, he claims that his barracks were located adjacent to an airfield, and he was exposed to the intense noise of aircraft taking off and landing. He also alleges that "steam compression" in the barracks contributed to this trauma. The Veteran notes that he was not afforded ear protection during his time of service. The Veteran states that he was diagnosed with tinnitus by an Air Force physician while in service. The Veteran's wife reports that her husband was diagnosed by the Air Force physician as the Veteran has alleged and that the Veteran has had a "hearing problem" since they married in 1958 (approximately 7 months after the Veteran's discharge) that has continued to the present day. She further notes that her husband, while "not totally deaf," has a constant ringing in his ears. She also reports that the Veteran's memory is "declining" but that she could not accompany the Veteran during his February 2011 VA audiological examination, where the Veteran reported that he did not have tinnitus during the previous year. In an August 2011 report, James A. Ewing, M.D. reported that the Veteran is having "some degree of declining memory and difficulty with cognitive functions and has to be accompanied by his wife most of the time in order to function properly." Additionally, he notes that the Veteran's "hearing pattern is consistent with noise induced hearing loss" that was sustained during military service. The Veteran's service treatment records were destroyed by fire, and therefore could not be reviewed. During a February 2011 VA audiological examination, the VA examiner noted that the Veteran reported noise exposure from working at a model shop for 13 years with hearing protection worn only at the end of his employment, and that the Veteran reported that he had not had tinnitus since one year prior to the examination. The Veteran's testimony is competent lay evidence, because it is evidence not requiring "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); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation). It is the Board's fundamental responsibility to evaluate the probative value of all evidence, including testimony. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). 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). The Veteran and his wife have been married since late 1958, and have reported the Veteran has had continuous symptoms of tinnitus. There is no evidence to contradict this competent report. Apparently based on Dr. Ewing's report, the RO granted service connection for hearing loss, and therefore found that the Veteran was exposed to excessive noise as he reported which caused his hearing loss. Although the Veteran did not report having then-current tinnitus at his February 2011 VA audiological examination, he apparently told the examiner that he last had the symptom since a year previously; or in February 2010. His later submissions, as those of his wife have contradicted his report of the absence of tinnitus symptoms and there is evidence that the Veteran's memory and cognitive abilities are declining.. The Veteran's assertions, as well as those of his wife, are deemed facially credible and are not overtly contradicted by other evidence of record. Resolving reasonable doubt in favor of the Veteran, service connection is granted for tinnitus. ORDER Service connection for tinnitus is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs