Citation Nr: 1311481 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-16 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim, known as Virtual VA. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's assertions of in-service acoustic trauma are credible and consistent with the circumstances of his service. Service connection has been established for bilateral hearing loss. High frequency hearing loss was shown at separation from service and had previously reported tinnitus. 2. The Veteran currently has tinnitus which may not reasonably be disassociated from his exposure to acoustic trauma in service and his service connected hearing loss; his uncontested lay statements reflect that his tinnitus began during service and has continued since service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken on the issues decided herein below, the Board finds that no further assistance in developing the facts pertinent to these claims is required at this time. Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). In the case of a veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Board has reviewed all the evidence in the appellant's claims file and the electronic Virtual VA 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 the appellant 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). Analysis The Veteran claims that he has tinnitus as a result of frequent exposure to artillery fire while serving in the U.S. Army in the Republic of Vietnam. He stated in his March 2008 claim that while in Vietnam he was "constantly exposed to the firing of artillery." The Veteran's DD Form 214 indicates that he served with the 31st Artillery Regiment and that he spent just under a year in the Republic of Vietnam. The DD Form 214 also shows that the Veteran is a recipient of the Republic of Vietnam Campaign Medal, two Overseas Service bars, and the Army Commendation Medal. The Veteran's Record of Assignments shows that he worked as an Ammo Handler, Cannoneer, and Ammo Specialist and that he participated in the Tet Counteroffensive. The Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). Moreover, a combat Veteran's assertions regarding an injury during combat shall be accepted if consistent with the circumstances, conditions, and hardships of such service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). As the Veteran's records clearly corroborate his credible and uncontested lay statements, the Board accepts the Veteran's assertions of significant in-service noise exposure as credible and consistent with the circumstances of his combat service. The Veteran's service treatment records are silent for any treatment or complaints relating to tinnitus. The Veteran's separation examination report does, however, indicate that the Veteran experienced high-middle frequency hearing loss while in service. While the Veteran's July 1967 hearing examination shows a pure tone threshold of 5 decibels at 4000 Hertz in both the right and left ears, his August 1969 separation examination testing shows a pure tone threshold of 45 decibels at 4000 Hertz in the right and left ears. The Veteran first filed a claim for service connection for a "hearing problem" in July 1988. He was afforded a VA examination in October 1988 in which he described experiencing complete hearing loss immediately after being "over run by the enemy," where he was exposed to weapons noise at close range. He stated that although his hearing ultimately returned, it did not return completely. The Veteran also stated that he did have ringing in his ears. The Veteran was granted service connection for hearing loss in an April 1989 rating decision, which noted that the Veteran had served in artillery for one year in Vietnam and had high frequency hearing loss while in the service. In March 2008 the Veteran filed a separate claim for tinnitus and was afforded a VA audiological examination in May 2008. The examiner noted that direct combat exposure without the benefit of hearing protection was reported. She stated that medical records showed hearing loss since 1988 but that the Veteran did not provide the date of onset of tinnitus. The Veteran did not report any noise exposure in his civilian employment after discharge from service. The examiner diagnosed the Veteran with constant tinnitus, but noted that "patient does not relate the presence of the tinnitus to his hearing difficulties or his military noise exposure." In an addendum opinion, the examiner stated that tinnitus was less likely as not caused by noise exposure sustained in service because "the claimant did not relate the presence of his tinnitus to his hearing loss or military noise exposure." In a subsequent substantive appeal, appellant relates his tinnitus to his service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). In assessing medical opinions, the failure of the physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds that the opinion of the March 2008 examiner to be lacking in probative value as it fails to accurately consider the Veteran's history, was not based on a review of the claims file, and does not provide a valid rationale for its finding. The VA examiner appears to have based his finding solely on the fact that the Veteran himself did not at that time relate his tinnitus to his hearing loss or military noise exposure. The VA examiner did not discuss with the Veteran when the onset of his tinnitus began or the manifestation of his tinnitus symptoms, provide any discussion of the etiology of the Veteran's tinnitus, or acknowledge that the Veteran reported ringing in the ears during his 1988 VA examination. The Veteran has, however, provided competent and credible lay evidence regarding experiencing tinnitus and hearing loss in service and a long history of experiencing symptoms up to the present day. The Board points out that in some circumstances, a layperson may opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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. Relevant to the current determination, tinnitus is such a condition that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran's lay statements regarding hearing problems during and since service, if found to be credible, are competent and sufficient to establish a diagnosis during service. See Jandreau, 492 F.3d at 1377. The Veteran is competent to describe his perceived symptoms as he felt them at the time and in the years following service, and furthermore the Board finds his statements credible in light of the accompanying evidence of record. The Veteran's statements regarding his frequent exposure to the noise of artillery fire are consistent with information contained in his records, and nothing in the record suggests that his statements are not credible. After carefully reviewing the evidence of record and resolving all reasonable doubt in his favor, the Board finds that the Veteran's current tinnitus cannot be reasonably disassociated from his conceded in-service exposure to loud noise. The Veteran's noise exposure has already been acknowledged by VA in the granting of service connection for hearing loss in April 1989. Therefore, given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus are met. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs