Citation Nr: 1307399	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  10-40 322	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Hancock, Counsel


INTRODUCTION

The Veteran had active service from February to March 1978, and from January 2007 to November 2008.  He also had several years in the Reserves.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

A video conference hearing was held in February 2012, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC.  A transcript of the hearing testimony (transcript) is associated with the claims folder.  


FINDING OF FACT

Resolving all doubt in the Veteran's favor, tinnitus is causally related to noise exposure during active service.


CONCLUSION OF LAW

Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).










REASONS AND BASES FOR FINDING AND CONCLUSION

As the Board's decision to grant service connection for tinnitus herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms.  Savage v. Gober, 10 Vet. App. 488 (1997).  The Board does point out, however, that in Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  


When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

To establish service connection for tinnitus, the Veteran is not obliged to show that his tinnitus was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, 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).

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 is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.


The service treatment records make no mention of any complaints of, or findings relating to, tinnitus.  A private medical record dated in July 2008 shows that the Veteran denied having tinnitus.  A DD Form 214 does show that he performed in-service duties which included vehicle operations and electric power production.  

As part of a January 2009 VA general medical examination the Veteran complained of bilateral tinnitus.  

Review of a January 2009 VA ear diseases examination report shows that the Veteran complained of ringing in his ears for about one year.  He denied prior treatment.  The Veteran described military noise experience from performing maintenance on vehicles.  Examination showed that no active ear disease was present.  The examiner opined that the Veteran's tinnitus was not caused by or the result of hearing loss.  The Veteran's hearing acuity, noted the examiner, was within normal limits and accompanied by excellent speech recognition ability.  

The report of a January 2009 VA audio examination shows that the Veteran complained of tinnitus.  He provided a history of in-service exposure to airplane and heavy equipment noise.  He added he had seven years of biannual exposure to firing range-related noise.  He denied occupational or recreational noise exposure.  The Veteran reported that his tinnitus began to occur about a year earlier, after being exposed to airplane noise.  He added he had episodes, of different durations, every other day.  

A February 2010 VA social work survey report notes that subjective tinnitus was listed among the Veteran's disabilities.  

A July 2010 VA outpatient audiology consult report shows that the Veteran reported that he experienced military noise exposure for many years.  He complained of permanent tinnitus.

At his February 2012 video conference hearing conducted by the undersigned, the Veteran testified that he was exposed to noise while working in the motor pool.  He added he also worked around aircraft engines.  See pages three and four of transcript.  He added that his tinnitus symptoms occurred most often in the evening.  See page five of transcript.  The Veteran informed the undersigned that he first noticed ringing in his ears during his last period of active service.  See page seven of transcript.  His tinnitus, noted the Veteran, was continuous.  See page eight of transcript.  

The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignment during his period of active duty.  In giving due consideration to the places, types, and circumstances of his service, noise exposure is acknowledged.  38 U.S.C.A. § 1154(a).  The Board also observes that, as pointed out by the Veteran's accredited representative in the course of the February 2012 hearing (see page five of transcript), tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose.  Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  The Board also finds the Veteran's testimony at his February 2012 hearing concerning in-service noise exposure and ringing in the ears since service to be credible.  Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing).  The Veteran has provided competent and credible lay evidence of noise exposure and tinnitus in service.  See VA Fast Letter No. 10-35 (Sept. 2, 2010).

In Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit reiterated its interpretation of lay testimony adopted in Waters v. Shinseki, 601 F.3d 1274 (Fed Cir. 2010), that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service.  Id. at 6-7.  Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as the Waters case itself, in which the lay evidence falls short of satisfying the statutory standard.  Id.

In view of the totality of the evidence, including the Veteran's documented in-service duty assignment and acknowledged in-service noise exposure, current findings of tinnitus, credible lay assertions of in-service tinnitus, and contentions that such is related to acknowledged in-service noise exposure, the Board finds that tinnitus is causally related to noise exposure during active service. 

Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert.


ORDER

Service connection for tinnitus is granted.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs