Citation Nr: 1304629	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-36 173	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from May 1964 to April 1967.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2011, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is included in the claims file.  At the time of the hearing, the Veteran submitted additional evidence directly to the Board, along with a waiver of initial RO consideration of the evidence.  This evidence is accepted for inclusion in the record on appeal.  See 38 C.F.R. §§ 20.800, 20.1304 (2012).  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.


FINDING OF FACT

The Veteran's current tinnitus began in service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  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.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462   (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183.

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.  See generally 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.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

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.

In this case, as reflected in his February 2010 notice of disagreement and August 2010 substantive appeal, the Veteran asserts that he currently has tinnitus that first began in service while he was a member of an open gun mount crew aboard a ship for about two years and was not provided effective hearing protection, and where he worked around loud engines.

The Veteran's DD Form 214 (Report of Transfer or Discharge) reflects that the Veteran served as a seaman and had over two years and eight months of foreign or sea service.  Service treatment records do not reflect any reports of tinnitus or other hearing problems, and at the time of the Veteran's April 1967 examination for separation from service, a normal evaluation of the ears was noted.

The earliest indication of tinnitus in the record is an April 2006 private treatment record, in which it was noted that he reported some ringing in his ears.  On a November 2008 physical fitness form for motor vehicle operation, the Veteran indicated that he had poor hearing in one or both ears, and that his ears rang all the time.  

The report of a June 2009 VA examination reflects that the Veteran reported military noise exposure from assisting with and operating gun mounts aboard a ship, and occupational noise exposure as a firefighter for thirty years, recreational noise exposure from firearms when target shooting one to two times per month with use of hearing protection, and occasional use of power tools.  The Veteran also reported having had constant bilateral tinnitus since military service.  The VA examiner diagnosed bilateral tinnitus, and opined that given the lack of documentation of hearing loss at a time near that which the Veteran was in service and the Veteran's history of post-service occupational and recreational noise exposure, it was unlikely that the Veteran incurred hearing loss during service, and that the Veteran's tinnitus was likely secondary to his hearing loss.

During his November 2011 Board hearing, the Veteran testified that ringing in his ears began in service, although he never visited sick bay for the problem, and that on his ship he served on the gun crew of a three-inch 50-caliber gun mount, where he fired 12 to 18 rounds of such weapons with hearing protections five or six times a year for two years.  He testified that following such gunfire, he would have tinnitus that would subside, but not completely go away, and that before he left the ship the ringing in his hears had become constant.  The Veteran's representative further asserted that the Veteran had been trained with .30 caliber and .50 caliber machine guns prior to his duties on his ship as well.  At the time of his hearing, the Veteran submitted photographs of a three-inch 50-caliber gun, and where it was mounted on his ship.

Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claim must be granted. 

The Veteran is competent to report matters within his own personal knowledge such as experiencing ringing in his ears beginning in service.  See Layno, 6 Vet. App. at 469.  Given the Veteran's service as a seaman with over two years and eight months of foreign or sea service, and in the absence of contradictory evidence, the Board finds that the Veteran's testimony and statements regarding his noise exposure on the gun crew of a three-inch 50-caliber gun mount and resulting ringing in his ears to be credible.  While service treatment records do not indicate that the Veteran ever reported ringing in his ears, and while the earliest indication of tinnitus is in April 2006, the record does not contain any statement by the Veteran or other such affirmative evidence suggesting the absence of tinnitus since his period of service, or otherwise contradicting his assertions.

While the opinion of the June 2009 VA examiner was that the Veteran's tinnitus was secondary to hearing loss, and that hearing loss was not related to the Veteran's service, the examiner did not address or explain the Veteran's assertions that his tinnitus had existed since his period of service.  This diminishes the probative value of the opinion, particularly given the military noise exposure incurred by the Veteran from assisting with and operating gun mounts aboard a ship acknowledged by the VA examiner.  

Given the above, the Board finds that the evidence pertaining to whether the Veteran's current tinnitus began in service is at least in relative equipoise.  Resolving reasonable doubt in the Veteran's favor, the Board finds that current tinnitus began in service.  Accordingly, the Board finds that the claim for service connection for tinnitus must be granted.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 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.

ORDER

Service connection for tinnitus is granted.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs