Citation Nr: 1312995 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-26 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for recurrent tinnitus. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The appellant is a Veteran of the United States Army Reserve who had qualifying active service from June 2000 to October 2000, March 2003 to June 2003, November 2005 to January 2006, and February 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In addition to the above-captioned issue, the appeal originally included a claim for service connection for a psychiatric disorder (posttraumatic stress disorder with depression). However, that claim was later granted in a June 2009 rating decision. Significantly, the Veteran has not contested the disability rating or the effective date assigned following that initial award of service connection. Accordingly, the Board considers his psychiatric claim to be fully resolved and, thus, outside the scope of its appellate jurisdiction. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that 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 the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2012). In July 2011, the Veteran was afforded Travel Board hearing before the undersigned, who was designated to conduct that hearing pursuant to 38 U.S.C.A. § 7102(a). A transcript of the proceeding has been associated with the claims file. In January 2012, the Board remanded the Veteran's tinnitus claim for additional development. In light of the favorable action taken below, the Board need not address whether there has been substantial compliance with that prior remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, recurrent tinnitus was incurred coincident with his period of active duty in Afghanistan. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to provide the appellant notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Board is granting service connection for recurrent tinnitus. As this represents a complete award of the benefits sought on appeal, no further discussion of VA's duty to notify and assist is necessary. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also, Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection The Veteran, in written statements and testimony before the Board, contends that he developed ringing in his ears and related symptoms of tinnitus during his period of active duty in Afghanistan. See Board Tr. at p. 2. He further alleges that, since that overseas deployment, his tinnitus symptoms have persisted on a recurrent basis, notwithstanding his lack of post-service noise exposure. Id. at 3-4. As such, the Veteran maintains that his currently diagnosed tinnitus had its onset in service and that service connection is therefore warranted for that disability. Prior to addressing the merits of the Veteran's claim, the Board acknowledges that a portion of his service treatment records (STRs) remain outstanding. Specifically, the records corresponding to his periods of active-duty service from March 2003 to June 2003 and from February 2006 to April 2007 are missing from both his paper claims folder and Virtual VA efolder. The agency of original jurisdiction (AOJ) has made multiple attempts to reconstruct those records from alternate sources, including the Veteran himself. However, such efforts have not been successful. Accordingly, the AOJ has issued a January 2009 formal finding of unavailability with respect to those records and has notified the Veteran of its actions in the March 2009 rating decision. Having conceded the unavailability of STRs, which may have lent support to the Veteran's appeal, the Board recognizes that it has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Nevertheless, the Board's duty to carefully address and weigh all potentially favorable evidence does not lower the overall legal standard for proving the Veteran's claim for service connection. See Russo v. Brown, 9 Vet. App. 46 (1996). Service connection may be granted for disability or injury that had its onset in service or was permanently aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Generally, to establish service connection on a direct basis, there must be (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss and other organic diseases of the nervous system, which manifest to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In addition, a presumption is afforded all veterans that are shown to have engaged in combat with the enemy during active service. 38 U.S.C.A. § 1154(b) (2012). Specifically, when an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory (i.e., credible) lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012); see Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (noting that satisfactory evidence is credible evidence). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012). Although 38 U.S.C.A. § 1154(b) does not establish a blanket presumption of service connection, it does ease a combat veteran's burden of demonstrating the occurrence of an in-service incident to which a current disability may be attributed. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). That reduced evidentiary burden only extends to the question of in-service incurrence, and not to the question of either current disability or nexus. Both of those inquiries require additional medical or, in certain instances, lay evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996); cf. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012) (holding that, when the veteran asserts that the symptoms of his disability began while in service, the combat presumption may support service connection under a theory of chronicity). The Board must assess the weight of all evidence, both medical and lay, to determine its probative value, accounting for that which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight need not be accorded to every modicum of evidence contained in the record as each such item does not carry the same probative value. Lay evidence is considered competent if derived from a source that has personal knowledge of facts or circumstances and conveys matters that can be described through physical observation. 38 C.F.R. § 3.159(a). Thus, a veteran is competent to report on his current and historic symptomatology in a claim for service connection. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Similarly, lay evidence can be sufficient to establish a current diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Significantly, for purposes of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has broadened the applicability of lay evidence by holding that such evidence can sufficient, in certain instances, to prove nexus and that a "valid medical opinion" is not absolutely required to substantiate this element of the Hickson test. Davidson, 581 F.3d at 1316. Conversely, the Federal Circuit has narrowed the scope of cases in which lay or other competent evidence may establish the second and third prongs of Hickson under a theory of continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2012). Indeed, the Federal Circuit has clarified that this theory only applies to diseases recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the wake of Walker, the Board has considered whether 38 C.F.R. § 3.309(a), which expressly includes other organic diseases of the nervous system, reasonably contemplates the recurrent tinnitus at issue in this appeal. 38 C.F.R. § 3.309(a) (2012). Ultimately, however, the Board considers it unnecessary to resolve that question as the record supports a grant of the Veteran's claim under the traditional Hickson elements. See Hickson, 12 Vet. App. at 253; but see 38 C.F.R. § 3.303(b). Turning to the first prong of Hickson, the Board notes that the Veteran's VA treatment records and examination reports confirm that he has a current diagnosis of bilateral tinnitus. However, even without such objective verification, the threshold requirement for service connection would be met in this case. See Hickson, supra; Brammer v. Derwinski, 3 Vet. App. 223 (1992). That is because, unlike sensorineural hearing loss, which is defined by regulation, tinnitus is susceptible to lay diagnosis. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Charles v. Principi, 16 Vet. App 370 (2002) (tinnitus can be observed by the lay person). Therefore, the Veteran's own testimony is sufficient to show that he suffers from a current disability, manifested by recurrent ringing in the ears which satisfies the initial Hickson element. See Board Tr. at pp. 3-4. The Veteran's lay assertions also constitute probative evidence of in-service injury in accordance with the second element of Hickson. Hickson, 12 Vet. App. at 253. In this regard, the Veteran has reported a history of prolonged exposure to incoming mortar rounds, exploding rockets, and other heavy weapons fire. See Board Tr. at p. 3. He is competent to describe such noise exposure, which falls within the realm of his personal experience. 38 C.F.R. § 3.159(a)(2) (2012); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, the Board considers the Veteran's testimony credible as it is both internally consistent and in line with the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Specifically, the Veteran's service personnel records (SPRs) reflect that he served as a heavy equipment operator in Afghanistan and received imminent danger pay while on active duty overseas. The Board considers such documentation sufficient to trigger the relaxed evidentiary burden afforded combat veterans under 38 U.S.C.A. § 1154(b). As noted earlier, that provision allows for a presumption of in-service incurrence where the claimed injury is consistent with the circumstances, conditions, or hardships of combat. Such is the case here. Indeed, the Veteran's account of active-duty acoustic trauma is wholly supported by the evidence of overseas combat deployment documented in his SPRs. Conversely, the Board recognizes that the Veteran's account is not supported by his available STRs. To the contrary, those treatment records are negative for any complaints or clinical findings of tinnitus or other hearing problems. Nevertheless, the mere absence of a documented hearing disability in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, when the regulatory requirements for such a disability are not shown at separation, service connection may still be established through probative evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also 38 C.F.R. § 3.303(d) (2012). That is especially true where, as here, select STRs are missing. Under such circumstances, the Veteran is constrained in his ability to document his claimed in-service injury and, thus, the Board must carefully consider the benefit of the doubt rule. See Cuevas, 3 Vet. App. at 548; O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Accordingly, resolving reasonable doubt in favor of this combat Veteran, the Board accepts as true his account of in-service noise exposure. That concession of active-duty acoustic trauma satisfies the second prong of Hickson. Hickson, 12 Vet. App. at 253. Moreover, the reliance on lay evidence to meet that requirement, notwithstanding the lack of objective confirmation of in-service tinnitus, comports with the holding in Ledford that a disability need not manifest in service in order to be service-connected. Ledford, 3 Vet. App. at 89. Nevertheless, for the Veteran to prevail in the instant case, there still must be probative evidence of a link between his recognized in-service injury and his current disability. Hickson, 12 Vet. App. at 253; Hensley, 5 Vet. App. at 159-60. In an effort to demonstrate the required nexus, the Veteran has presented for VA audiology examinations in February 2009 and October 2012. However, while both examinations have yielded clinical findings of bilateral tinnitus, neither has resulted in an etiological opinion that supports his claim. To the contrary, the February 2009 VA audiological examiner has opined that the Veteran's tinnitus bears no reasonable association either to his current sensorineural hearing loss or to his in-service noise exposure. Instead, that VA examiner has surmised that the Veteran's tinnitus is causally related to "other factors." See Report of February 2009 VA Audiology Examination, p. 2. Tellingly, however, that examiner has declined to elaborate on the nature and etiology of such causal factors. Id. Moreover, that examiner has made no mention of the Veteran's own complaints of in-service noise exposure and ensuing tinnitus symptoms. Nor has the subsequent VA examiner, notwithstanding the Board's express request that such lay evidence be considered on remand. Rather than reconciling the Veteran's account of prolonged acoustic trauma in service, and his denial of any significant post-service noise exposure, that October 2012 examiner has essentially subscribed to her predecessor's findings regarding a lack of documented "noise injur[ies]" in service. See Report of October 2012 VA Tinnitus Examination, p. 5. The above VA examiners' reliance on contemporaneous in-service treatment (or, in this case, the lack thereof) runs counter to the holding of Ledford, 3 Vet. App. at 89. Moreover, by declining to afford the proper weight to the Veteran's lay assertions, both examiners have rendered opinions that are based on an incomplete history of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that while the Federal Rules of Evidence are not binding on the Court, nor on the Board, the rules on expert witness testimony provide useful guidance in assessing the probative weight of medical opinions). As such, neither the October 2012 examiner's opinion nor that of her predecessor is adequate for the Board to make an informed decision on the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). The Board acknowledges that, once VA undertakes an examination or medical opinion, it is obligated to provide an accurate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board further recognizes that where, as here, its remand orders have not met with sufficient compliance, an additional remand is generally needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Nevertheless, the Board considers it unnecessary to remand the Veteran's service connection claim for still another examination in this case. But see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Such development would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). That is because, for reasons outlined below, the evidence already of record is sufficient to grant the benefits sought on appeal. In making this determination, the Board is guided by the Veteran's own account of recurrent tinnitus symptoms, which have persisted since his return from Afghanistan despite a lack of additional noise exposure. Just as the Veteran is capable of reporting a history of in-service acoustic trauma from mortar rounds and heavy weapons fire, he is competent to attest to a lack of such trauma since leaving active duty. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 309. The Veteran is also competent to describe the recurrent presence of ringing in his ears, and related tinnitus symptoms, which are capable of lay observation. See Charles, 16 Vet. App. at 374; Davidson, 581 F.3d at 1318. Moreover, the Board considers the Veteran's assertions to be credible in the absence of salient evidence to the contrary. See Caluza, 7 Vet. App. at 511 (1995). In this regard, the Board is mindful of the Veteran's acknowledgment that, since leaving active service, his tinnitus has not persisted on a constant basis but, instead, has been productive of symptoms that come and go intermittently. See Board Tr. at p. 3-4. Significantly, however, tinnitus that is recurrent may by definition be intermittent and, thus, need not be constant to qualify as a disability for VA purposes. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Accordingly, the mere fact that the Veteran, by his own admission, has not experienced tinnitus during every post-service moment does not render his assertions of recurrent symptoms inherently incredible. Moreover, the fact that he has consistently reported such symptoms throughout the pendency of the appeal bolsters the overall credibility of his lay assertions. See Caluza, 7 Vet. App. at 511 (1995). Having thus determined that the Veteran's account of recurrent tinnitus symptoms is both competent and credible, the Board finds such lay evidence to be sufficient, given the particular facts of this case, to establish a direct link between his current disability and active service. Indeed, the Veteran's account, in tandem with the other aforementioned evidence of record, meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) as it indicates that his tinnitus flows directly from his active-duty acoustic trauma in Afghanistan. The Board recognizes that such an etiological relationship has not been demonstrated through the foregoing VA examination reports, nor otherwise shown through competent medical opinion evidence. As discussed, however, the absence of a "valid medical opinion" is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the third and final Hickson prong. Davidson, 581 F.3d at 1316. In sum, the Board finds that all three criteria of the Hickson test have been met and, thus, service connection for recurrent tinnitus is warranted on a direct basis. In reaching this conclusion, the Board has afforded careful consideration to the "benefit of the doubt" rule. As explained previously, that provision carries heightened applicability in cases, such as this, in which at least a portion of the appellant's Federal records are missing. See, e.g., Cuevas, 3 Vet. App. at 548. Accordingly, the Board resolves all reasonable remaining doubt in the Veteran's favor and hereby grants his tinnitus claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). (CONTINUED ON NEXT PAGE) ORDER Service connection for recurrent tinnitus is granted. ____________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs