Citation Nr: 1308950 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 12-07 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to January 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed that decision, and the case was referred to the Board for appellate review. The Board subsequently remanded the Veteran's bilateral hearing loss and tinnitus claims for further development in June 2012. That development was completed, and the Veteran's tinnitus claim was returned to the Board for appellate review. The Board acknowledges the United States Court of Appeals for Veterans Claims' (the Court's) holding in Stegall v. West, 11 Vet. App. 268 (1998), that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. However, since the Veteran's tinnitus claim is being granted in full, as discussed below, compliance with the Board's prior Remand instruction in regards to the present claim is rendered moot. In a November 2012 rating decision, the VA Appeals Management Center (AMC) granted the Veteran's claim of entitlement to service connection for bilateral hearing loss; a noncompensable rating was assigned effective from June 29, 2010, and a 10 percent rating was assigned effective from February 23, 2012. The time period during which to file a Notice of Disagreement as to the disability ratings assigned has not yet expired, and the Veteran has not disagreed with the assigned evaluation or effective date. Therefore, that matter of service connection for bilateral hearing loss has been resolved and is not in appellate status. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In the present case, the Board notes that the Veteran has not asserted that his tinnitus was caused or aggravated by his now service-connected bilateral hearing loss. However, in Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Court held that VA has obligation to explore all legal theories, including those unknown to the Veteran, by which he can obtain benefit sought for the same disability. As such, the Veteran's claim has been expanded to include the theory of secondary service connection. See also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006). Since the Veteran's claim is being granted, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 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). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's tinnitus is causally-related to his service-connected bilateral hearing loss. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the Veteran's tinnitus is proximately due to or the result of his service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Because the Veteran's claim of entitlement to service connection tinnitus is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5110, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a); 3.159, 3.326 (2012). Service Connection for Tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include 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 means 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Merits of the Claim Initially, the Board observes that the Veteran tinnitus claims requires consideration of whether benefits may be awarded under the theories of direct and secondary service connection. Since the Board is granting the Veteran's claim under the theory of secondary service connection, the laws and regulations concerning direct service connection will not be discussed and the Board will, instead, focus its analysis of the Veteran's claim under the theory of secondary service connection. Turning to the merits of the claim, it is uncontroverted that the Veteran has been diagnosed with tinnitus. Indeed, the February 2012 VA audiology examination report includes a tinnitus diagnosis. Moreover, the Veteran has consistently asserted that he suffers from bilateral tinnitus in statements dated throughout the pendency of his claim. See e.g., Veteran's statements dated June 2010, November 2010, and July 2012. As previously noted, lay testimony describing symptoms at the time that supports a later diagnosis by a medical professional is sufficient to establish a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). The Board finds that the Veteran's statements in this case are credible since tinnitus is subjective, and the kind of condition to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to symptomatology capable of lay observation). Moreover, the fact that the Veteran has hearing loss adds to the credibility of the Veteran's contention that he has tinnitus because "an associated hearing loss is usually present" with tinnitus. THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. With regard to the latter, the AMC has granted service connection for hearing loss in this case based on a July 2012 VA examiner's opinion that the Veteran's bilateral hearing loss was at least as likely as not related to his military service, i.e., a result of his exposure to noise during service. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." THE MERCK MANUAL, Section 7, Cha. 85, Inner Ear. Thus, the Board finds that the Veteran is competent to relate a history of noise exposure during service and a history of experiencing tinnitus, and the evidence of a current tinnitus disorder has been thoroughly demonstrated. Further, as discussed in the Introduction, the AMC granted the Veteran's claim of entitlement to service connection for bilateral hearing loss in the November 2012 rating decision. Thus, the remaining question is whether the Veteran's tinnitus was caused or aggravated by his service-connected bilateral hearing loss. During the February 2012 VA examination, the Veteran reported having recurrent tinnitus in both ears. The examiner noted the Veteran's military service as a radar technician and his reports of having worked on the flight line around engine noise without the benefit of hearing protection. The Veteran also described experiencing post-military occupational and recreational noise exposure, sometimes without hearing protection. He described the occurrence as sounding like a "heartbeat" and stated that he first noticed the occurrence in the 1990s. The Veteran underwent a clinical assessment, without the examiner reviewing the claims file prior to the examination. Following the examination, the VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner identified "too far long removed from service (40-50 years post military)" as the rationale for this opinion. Subsequently, the VA examiner reviewed the Veteran's service treatment records and provided an addendum in February 2012. The examiner opined that the Veteran's tinnitus was not caused by or a result of in-service acoustic trauma. The examiner again identified the rationale for this opinion as the significant delay in symptoms, "not starting until the late 1990s," and no complaints of tinnitus in the record. He also noted that the Veteran's in-service noise exposure was "limited." In the June 2012 Remand, the Board outlined VA Training Letter 10-02, issued in March 2010, regarding the adjudication of claims for hearing loss and tinnitus. In pertinent part, the Board observed that Training Letter 10-02 indicated that sensorineural hearing loss is the most common cause of tinnitus, but there are other known causes. Indeed, the June 2012 Board Remand instructed that the Veteran's VA claims file should be returned to the February 2012 VA examiner (or other appropriate clinician if she was unavailable) so that the examiner may offer an opinion concerning a possible relationship between the Veteran's bilateral hearing loss and tinnitus. In response to the June 2012 remand, an additional VA examiner reviewed the claims file for the purpose of providing an addendum. In the July 2012 addendum, the examiner opined that it was at least as likely as not that the Veteran's hearing loss was related to service, given that he was a radar technician and was likely exposed to noise under headphones on a daily basis and his report of working around jet engines and the flight line. Regarding whether tinnitus was secondary to hearing loss, the examiner stated that although hearing loss and tinnitus are commonly present together, they are not necessarily mutually occurring. She stated that these disorders have varying causes, to include certain medications, stress, anxiety, etc. The examiner stated that hearing loss does not cause tinnitus or vice versa. The Board concludes that the July 2012 VA opinion is inadequate because it directly contradicts VA's own policies regarding the development and adjudication of hearing loss and tinnitus claims contained within Training Letter 10-02. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also 38 C.F.R. § 4.2. Rather than remand this claim, once again, to get another opinion as to the likelihood that tinnitus is proximately due to the now service-connected hearing loss, the Board concludes that reasonable doubt should be given regarding this connection. 38 U.S.C.A. § 5107(b). The positive evidence of record consists of the provisions cited from THE MERCK MANUAL and the Veteran's service-connected sensorineural hearing loss. The AMC has granted the Veteran's claim seeking service connection for bilateral hearing loss above, and the evidence of record reflects that the Veteran has a diagnosis of tinnitus. See e.g., the February 2012 and July 2012 VA examination and addendum reports. The cited provisions from THE MERCK MANUAL confirm that tinnitus usually accompanies noise-induced hearing loss with which the Veteran in this case has been diagnosed. Finally, the Board has determined that the Veteran's contentions that he experiences tinnitus constitute competent and credible evidence upon which the Board may rely in making its decision. Thus, based on the Veteran's service-connected bilateral hearing loss, his diagnosis of tinnitus and the provisions from THE MERCK MANUAL noted above, the Board concludes that evidence for and against the claim for service connection for tinnitus is at least in approximate balance. In other words, the Board finds, based on this record that the Veteran's tinnitus is as likely the result of or associated with his service-connected noise-induced bilateral hearing loss as it is the result of some other factor or factors. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs