Citation Nr: 1313352 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-33 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to June 1969, from September 1971 to January 1973, and from March 1973 to August 1974, to include service in the Republic of Vietnam. He is in receipt of the Purple Heart medal. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2008, the Veteran withdrew his request for a personal hearing before a Veterans' Law Judge traveling to the RO. Therefore, the Board finds that adjudication of the current appeal may go forward without scheduling him for such a hearing. In December 2011, the Board denied the Veteran's claim to establish service connection for tinnitus and remanded several other claims for additional development. The Veteran appealed the portion of the December 2011 decision which denied his claim tinnitus claim to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2012 Order granting an April 2010 Joint Motion for Partial Remand (Joint Motion), the Veteran's appeal has been remanded to the Board. A letter was sent to the Veteran and his attorney on March 14, 2013, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. In l3 2013, the Veteran responded that he had no additional evidence to submit in support of his claim and waived the 90-day period, requesting that his claim be readjudicated immediately. The claim of entitlement to service connection for a sleep disorder, claimed as secondary to tinnitus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board makes a determination, it must consider whether the Veteran has been prejudiced thereby). The claims remanded by the Board in December 2011 have yet to be recertified to the Board, and thus, the Board does not have jurisdiction over them at this time. Accordingly, the Board will proceed with appellate adjudication of the issue on appeal. FINDING OF FACT There is competent evidence that the Veteran was exposed to loud noise in service, and the Veteran's current tinnitus resulted from an event of active service origin. CONCLUSION OF LAW Tinnitus was incurred in by active service. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. 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, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). In order to establish service connection for the claimed disability, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the law also provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary 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, condition, 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 by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that he has constant bilateral tinnitus as a result of in-service noise exposure, including exposure to small arms fire and explosions as an Anti-tank man while in training and thereafter while in combat in the Republic of Vietnam as well as during the documented incident when he sustained a shell fragment wound to his right wrists. Tinnitus is a condition under case law, where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent- "ringing in the ears is capable of lay observation. In the present case, the Veteran's complaints of ringing in his ears date back to December 2005, and he was diagnosed with constant bilateral tinnitus during a July 2007 VA audiological examination. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for symptomatology congruent with tinnitus, and he was not diagnosed with such during his active duty. However, with respect to the presumptions found at 38 U.S.C.A. § 1154(b), the record shows that the Veteran sustained a shell fragment wound to the right wrist while in combat in the Republic of Vietnam in March 1968. Therefore, the Board finds that the claimant is a combat Veteran. 38 U.S.C.A. § 1154(b). Accordingly, the Veteran is entitled to a presumption regarding in-service occurrence of any incident if consistent with the circumstances, condition, or hardships of such service. Moreover, under 38 C.F.R. § 3.303(a), the Board notes that being exposed to the loud noise caused by small arms fire and explosions is consistent with the circumstances, condition, and hardships of the claimant's service. 38 U.S.C.A. § 1154(b). The Board also finds that the Veteran is both competent and credible to report on what he can see and feel such as ringing in his ears and difficulty seeing while on active duty. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). At the July 2007 VA examination, the Veteran reported that he had experienced tinnitus for approximately five years. After a review of the claims file and an interview with and audiological examination of the Veteran, the examiner opined that the Veteran's tinnitus was less likely as not related to his in-service noise exposure. In providing this opinion, the examiner noted that the Veteran had post-service noise exposure as a construction worker, and, by the Veteran's own reports, tinnitus had its onset more than thirty years after his separation from service. In an October 2007 statement, the Veteran noted that he was a construction worker after his separation from service; however, he asserted that he was required to wear ear plugs on construction sites at all times, and thus, his post-service noise exposure was minimal and could not have caused his tinnitus. Further, in a November 2011 statement, the Veteran's representative asserted that the July 2007 examiner's opinion was inadequate, as it heavily relied upon the date of onset reported by the Veteran, an alleged poor historian. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be granted. As previously noted, service connection may be granted when the disability is first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disabilities were incurred in service. 38 C.F.R. § 3.303(d). The Board finds the Veteran's statements are credible, that is, the statements and testimony tend to prove a fact, that is, his tinnitus is related to his in-service exposure to excessive noise. The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an event (noise exposure), resulting in tinnitus. While service treatment records reflect no reports of tinnitus or ringing in the ears, there is no indication in these records, or any post-service treatment records, that the Veteran ever denied tinnitus or a history of tinnitus, or that the Veteran gave any history of tinnitus inconsistent with his written statements submitted in this claim. As the Veteran's in-service noise exposure is conceded due to his combat status, and with evidence of current disability and lay evidence of a relationship between the current disability and noise exposure in service, all the elements of service connection have been met and service connection is established. Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). The Board acknowledges that the opinion of the July 2007 examiner is unfavorable, but it is based upon the lack of any documentation in the service treatment records and the Veteran's unreliable reports that tinnitus had its onset in approximately 2002. It appears that the VA examiner relied on the absence of medical evidence to corroborate tinnitus during a period of active duty, which under the circumstances of the case, has minimal probative value in light of the Veteran's competent and credible assertions. Therefore, the evidence shows a relationship between service and the current tinnitus, that is, the statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure) that in the Veteran's current tinnitus. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus is the result of in-service noise exposure, and thus, service connection for this disorder must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs