Citation Nr: 1309897	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  09-00 242A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for tinnitus.


ATTORNEY FOR THE BOARD

T. Sherrard, Counsel


INTRODUCTION

The Veteran, who is the Appellant in this case, had active service from July 1992 to January 2000.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).

On his VA Form 9, the Veteran requested a hearing before the Board.  In November 2010, he clarified that he wanted a videoconference hearing.  The hearing was scheduled for January 17, 2013, at the San Diego RO; however, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date.  Under 38 C.F.R. § 20.704(d) (2012), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn.  Therefore, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review.  

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


FINDINGS OF FACT

1.  The Veteran experienced acoustic trauma in service. 

2.  The Veteran did not sustain a disease or injury (other than acoustic trauma) of the bilateral ears in service. 

3.  Symptoms of tinnitus were chronic in service. 

4.  The Veteran's tinnitus is causally related to his active service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§ 1110; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as organic diseases of the nervous system (e.g., tinnitus), to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 

Establishing service connection generally requires (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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which 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.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection for Tinnitus

The Veteran contends that his current tinnitus is related to acoustic trauma during active service.  Specifically, he avers that, while serving for four years in the infantry, he was exposed to numerous loud explosions from artillery, hand grenades, C-4, gun fire, and loud vehicles including helicopters and tanks.  He further avers that he was afforded minimal hearing protection on the firing ranges, and that using hearing protection was discouraged, as it rendered him unable to hear orders concerning safety from his commanding officers.  He stated that he had no other noise exposure outside of his military service.   

The Board finds that the evidence demonstrates that the Veteran was exposed to acoustic trauma in service.  His DD Form 214 shows that his Military Occupational Specialties (MOS) were Military Police for three years and Infantryman for seven years.  Moreover, he completed a Basic Infantryman course, an Air Assault course, and Military Police course, and received an Air Assault Badge.  Thus, the Board finds his contentions regarding military noise exposure to be credible.

Next, after a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the bilateral ears during active service, but that the evidence is at least in relative equipoise as to whether tinnitus was chronic during active service.  The Veteran's December 1991 enlistment examination report shows a normal audiogram and no complaints of tinnitus.  Although a separation examination report is not available (the Veteran avers that he was unable to complete a separation physical), the remainder of his service treatment records, including a May 1993 hearing evaluation, are negative for any complaints or report of tinnitus.  In short, service treatment records do not demonstrate tinnitus complaints, findings, diagnosis, or treatment.  

However, throughout the course of this appeal, the Veteran has stated that he began experienced ringing in his ears during active service.  The Veteran is competent to testify as to the onset of tinnitus, as it is observable by a layperson.  See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336.  Moreover, he has not been inconsistent in his statements as to the onset of his tinnitus.  For instance, at the March 2008 VA examination, he stated that, although he did not remember an exact date of onset, his tinnitus had been present for years.  An October 2009 VA treatment note indicates he reported tinnitus for fifteen years, placing its inception during active service.  Thus, there is no reason to doubt the Veteran's statements as to the onset of his tinnitus.  Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus was chronic during active service.  

The Board notes that continuity of symptoms following service separation is only required for service connection when the condition noted in service is not chronic.  38 C.F.R. § 3.303(b).  Here, as discussed above, the Board finds that symptoms of tinnitus were chronic in service.  

Moreover, the Board finds that the evidence is at least in equipoise as to whether the current tinnitus was caused by acoustic trauma during active service.  The Veteran was afforded a VA examination in March 2008.  The VA examiner reviewed the claims file and conducted an audiological examination and interview of the Veteran, noting the Veteran's in-service exposure to artillery weapons, and post-service exposure to weapons as a police officer with hearing protection.  As noted above, although the Veteran stated that he was unsure as to the date of onset of his tinnitus, it had been present for years.  The VA examiner opined that the Veteran's tinnitus is less likely as not related to military service, reasoning that his service treatment records were negative for complaints of tinnitus, there was no documentation of onset of tinnitus within a "reasonable time" following separation, and there was no current hearing loss.  Thus, the VA examiner stated, the etiology of the Veteran's tinnitus was unknown.    

Subsequent to the March 2008 VA examination, the Veteran submitted a November 2008 private treatment record from Safe Hearing America that shows hearing loss in both ears, along with audiogram results which confirm the presence of hearing loss.     

Despite the VA examiner's negative nexus opinion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during active service as a result of acoustic trauma.  As noted above, the Veteran is competent to state when his tinnitus began.  See Jandreau; Buchanan.  The Veteran has been consistent in the history he has provided, and there is no conflicting evidence regarding the history of onset of tinnitus.  Moreover, the Veteran used hearing protection in his post-service occupation as a police officer.  Therefore, the only source of acoustic trauma in the Veteran's history is his military service.  

In summary, based on the Veteran's competent statements regarding acoustic trauma during active service and chronic tinnitus during and after active service, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus are met.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

Service connection for tinnitus is granted.  



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs