Citation Nr: 1315329 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 12-23 822 ) 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 L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The Veteran's tinnitus is as likely as not related to his active duty. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2012). In this case, the Board is granting in full the issue of service connection for tinnitus. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Analysis The Veteran contends that his tinnitus began in service following military noise exposure. See, e.g., August 2012 substantive appeal. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). In the current appeal, the Veteran's DD 214 shows that he had service in the Air Force as a law enforcement specialist. In the December 2010 request for a VA examination, the RO conceded in-service acoustic trauma. Accordingly, the Board also concedes in-service acoustic trauma. After reviewing the evidence of record, the Board concludes that service connection for a tinnitus is warranted. Specifically, the evidence supports of a finding that the Veteran's tinnitus disability began in service due to conceded in-service acoustic trauma. The Veteran's service treatment records (STRs) do not reveal any complaint of or treatment for tinnitus or any other ear disorder. The Veteran's discharge examination is not of record. According to post-service treatment records, the Veteran reported avoiding loud noises such as deer hunting in July 2010. The Veteran was afforded a VA examination in January 2011. He reported his in-service noise exposure and post-service exposure as a mechanic for 14 years with hearing protection and riding a motorcycle for four years. He experienced tinnitus ever since he was exposed to jet aircraft in the military. The examiner opined that the Veteran's tinnitus was as likely as not a symptom associated with hearing loss. Although a negative nexus opinion for the Veteran's hearing loss was provided, the examiner opined that the tinnitus was at least as likely as not caused by or a result of in-service acoustic trauma. The examiner noted that the Veteran had exposure to high risk noise in service. His claim for tinnitus was time locked to his military service. Although he was treated for cancer, he was not given chemotherapy which had a high risk for cochlear damage. The status of his cochlear was not discovered on a discharge medical examination. Therefore, the slight drop in hearing in the high frequency range was as likely as not related to military acoustic trauma. However, it was noted that if his discharge examination was discovered and revealed normal hearing in the high frequency range (normal cochlear function) than that opinion should be re-assessed with strong evidence that his tinnitus was not related to acoustic trauma but rather an undiagnosed medical condition. An addendum opinion from the same examiner dated in March 2011 was obtained. The examination report indicates that the claims file had been returned for additional review and to provide a more definitive opinion on the status of the Veteran's claim for tinnitus. The examiner noted that further review of the claims file did not discover any complaints of tinnitus in his military medical records. His discharge hearing examination was not contained within his claims file. The opinion regarding his claim for hearing loss stated that the good hearing obtained on examination across the frequency range 500 through 4000 Hertz strongly indicated that 25 years ago at discharge, his hearing would have been better with even less indications of high frequency cochlear damage at that time. As such, an opinion of less likely as not was considered a fair representation of that condition even though he indicated it was related to his military exposures to jet aircraft. The good hearing in the high frequency range indicates it was more likely than not related to another medical condition. In his August 2012 substantive appeal, the Veteran reported always wearing adequate hearing protection when working as a mechanic and when riding motorcycles. In this case, the Veteran has reported that the onset of his tinnitus began in service; as discussed above, in-service acoustic trauma has been conceded. The Veteran is competent to report experiencing tinnitus that began in service. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran to be credible. Throughout this appeal, the Veteran has been consistent in his reports that his tinnitus began in service. He reported that tinnitus began in 1984 during his service in his July 2010 claim; reported to the January 2011 examiner that his tinnitus began in service; and continued to report that it began in service in his August 2012 substantive appeal. After reviewing all of the evidence, the Board finds the Veteran's assertions that the onset of his tinnitus was in service are both competent and credible. The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, the Veteran has provided a competent and credible report of having tinnitus since in-service acoustic trauma. Furthermore, the Veteran has reported wearing hearing protection post-service, indicating that the only acoustic trauma he incurred was in service. Therefore, the Board finds that the Veteran's reports alone are sufficient to establish a nexus. In finding that the Veteran's contentions establish a positive nexus, the Board acknowledges the March 2011 negative nexus opinion from the VA examiner. However, the examiner's initial opinion in January 2011 was a positive opinion. Both opinions were based on a review of the claims file and an examination of the Veteran. Although both opinions included rationales, the examiner did not explain their change from a positive opinion to a negative opinion. To the extent that the negative opinion noted that the Veteran's service records did not show any complaints of tinnitus, the fact that the Veteran did not seek treatment in service for tinnitus is not dispositive of whether it was incurred in service. As already discussed above, the Veteran has competently and credibly reported experiencing tinnitus following in-service acoustic trauma. Furthermore, as noted by the VA examiner, the Veteran's discharge examination is not of record. Notwithstanding the lack of tinnitus complaints in service, the Board accepts the Veteran's assertions of having tinnitus in service. In this case, considering the fact that the examiner did not provide a rationale for their change in opinion, the Board concludes that the negative opinion lacks probative value. Regardless of the probative value of either opinion, the Board reiterates that in this case, the Veteran's lay statements enough are sufficient to support a finding of service connection. Therefore, in considering the Veteran's competent and credible contentions, the presence of a current tinnitus disability, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has tinnitus that was incurred in service. The evidence is in favor of the grant of service connection for tinnitus. Service connection for tinnitus is granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs