Citation Nr: 1315352 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-13 121 ) 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: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. This matter was previously before the Board in March 2012 when the Board denied the Veteran's claim. The Veteran appealed the March 2012 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In a January 2013 Order, the Court vacated the Board's March 2012 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record is in equipoise as to whether the Veteran's tinnitus is related to active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") The Veteran asserts that his tinnitus had its onset following a Jeep accident in service. He also maintains it is due to acoustic trauma in service. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus. Service treatment records are silent as to any complaints or findings of tinnitus. However, service treatment records confirm that in April 1970, it was reported that the Veteran fell out of a moving vehicle about three weeks earlier. In July 1971, he reported he had been thrown out of a Jeep 15 months ago. Personnel records show the Veteran was a welder and ammunition handler in service. He served in an artillery unit. In a December 2003 VA outpatient treatment clinic report, the Veteran asserted he had been thrown out of a Jeep and fell in a mine field. He indicated he fell on his back and ear. The Veteran underwent a VA audiology examination in April 2007. His chief complaint was right ear difficulties. He reported military noise exposure from artillery, helicopters, fire missions, and small weapons fire. As for post-service occupational noise exposure, he reported working for General Motors for 18 years but that he used hearing protection at all times. No recreational noise exposure was reported. He reported bilateral tinnitus, which had its onset following a Jeep accident. He also stated he had bleeding from his right ear after the Jeep accident. The VA examiner opined that tinnitus was not caused by or the result of military service. In support of this opinion, the examiner pointed out that the Veteran's hearing was within normal limits after the alleged Jeep accident and that tinnitus was not documented in the service treatment records. As noted above, 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. Barr, 21 Vet. App. at 309. Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran's statement into question for the audiologist. Accordingly, lay testimony is competent to establish the presence of tinnitus and, if the lay testimony is also credible, service connection for tinnitus may be granted. Charles, 16 Vet. App. at 374 (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In this case, the medical evidence of record shows a reported history of tinnitus, current complaints of tinnitus, and a current medical diagnosis of tinnitus. However, the April 2007 VA examiner provided a negative opinion regarding the etiology of the Veteran's tinnitus. As noted above, the examiner stated that tinnitus was not caused by or the result of military service because the Veteran's hearing was within normal limits after the alleged Jeep accident and that tinnitus was not documented in service. The January 2013 JMR found that the examiner did not provide sufficient rationale for this opinion. In this regard, the JMR referred to the holding in Buchanan v. Nicholson, 451 F. 3d. 1131, 1336-37 that the Board may not reject a veteran's competent lay evidence regarding symptoms regarding matters, within his personal knowledge and experience, based solely upon the fact that the record fails to contain corroborating evidence. Therefore, the Board finds the April 2007 VA examiner's opinion inadequate on which to base a decision. Barr, 21 Vet. App. at 311-12 (holding that "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one"). Concerning this, the Board notes that it would have been helpful had the April 2007 VA examiner brought her expertise to bare in this manner regarding medically known or theoretical causes of tinnitus in determining the likelihood that current tinnitus was caused by noise exposure or acoustic trauma in service as opposed to some other cause. Moreover, it would have been helpful had the examiner explained the relationship between hearing loss and tinnitus since the examiner indicated that it was unlikely that tinnitus was due to noise exposure in service because the Veteran had normal hearing tests in service. Because the VA opinion is inadequate, the Board could remand for another opinion. However, because the Veteran's own lay testimony that he has experienced tinnitus since service is consistent with the circumstances of his service, including noise exposure, and therefore, is credible, the Board concludes that a remand is not necessary here. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, the Board concludes that the Veteran's lay testimony provides an adequate basis on which to grant service connection for tinnitus now. In this regard, the Veteran has reported that he first noticed his tinnitus since the Jeep accident in service and also contends that it is a result of military acoustic trauma. See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a 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). His testimony is consistent with evidence showing noise exposure in service. In this regard, the Board concedes that the Veteran was in a vehicle accident in service, as such is corroborated in the service treatment records. The Board also concedes that the Veteran was exposed to acoustic trauma in service, as such is consistent with the circumstances of his military service as a welder and ammunition handler assigned to an artillery unit. 38 U.S.C.A. § 1154(a) (West 2002). The Board further finds the Veteran's testimony that he started to have ringing in his while he was still in service to be credible, i.e., believable. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). Accordingly, based on the evidence of record, the Board finds the Veteran's lay statements are credible as to when his tinnitus began. While there is no medical evidence of record linking the Veteran's tinnitus to military service, his statements alone may be considered competent and credible evidence to make such a determination. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs