Citation Nr: 1316807 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-17 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. Among his awards and decorations, the Veteran earned the Combat Infantryman Badge (CIB), as well as a Bronze Star. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida, in which the RO, in pertinent part denied entitlement to service connection for tinnitus. In December 2007, the Veteran requested to testify before the Board at a videoconference hearing at the RO. In a January 2010 statement, the Veteran's representative indicated that the Veteran would not be able to attend the scheduled hearing later that month, and stated that the Veteran did not wish to reschedule such hearing. Accordingly, the hearing request has been withdrawn. In March 2010, the Board remanded the matter for additional development. In a June 2011 decision, the Board denied the claim. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2012, the parties submitted a Joint Motion for Partial Remand (Joint Motion). In February 2012, the Court issued an Order which incorporated the Joint Motion and vacated the Board's 2011 decision, to the extent that it addressed the claim noted on the title page of this decision, and remanded the claim to the Board. In October 2012, the Board again remanded the matter for additional development. The Board notes that the record raises the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. See May 2012 private record. This issue was referred to the Agency of Original Jurisdiction (AOJ) in the October 2012 Board remand, however, it has not been addressed by the AOJ. As such, the Board REFERS the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss to the AOJ for appropriate action. FINDING OF FACT Affording the Veteran the benefit of the doubt, his current tinnitus is causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Sufficient evidence is of record to grant the Veteran's claim of entitlement to service connection for a tinnitus disability. Accordingly, whether or not VA has met its duties of notice and assistance is of no consequence, as there is no prejudice to the Veteran. Service Connection Law and Regulations Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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 order to prevail on the issue of service connection there must be competent 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Discussion The Veteran contends that his current tinnitus disorder had its onset in service due to noise exposure as a result of his military occupational specialty (MOS), a light weapons infantryman. Specifically, he asserts that his tinnitus began in Vietnam in 1969 due to a 155 cannon, which was fired within in five feet of his location. He further asserts that he has experienced ringing in his ears since such incident. Moreover, the Veteran's wife states that the Veteran has had a hearing loss disability since at least 1970, when they were married. She also states that her husband informed her of the 155 millimeter cannon fire incident. The Veteran's service treatment records indicate that he served as an infantryman in the Army. He served in Vietnam for one year, from October 1968 to October 1969. For his service, he was the recipient of the CIB and Bronze Star, among others. His service in combat and exposure to acoustic trauma during service is conceded. The Veteran's service treatment records, including his August 1970 separation physical examination report are negative for complaints, treatment, or a diagnosis of tinnitus. Private treatment records from the Veteran's former employer demonstrate audiological testing from October 1987 through January 1994. Such records include reports of "noises in ears" bilaterally, as well as note tinnitus. Such records also note a "noise level code" and a "hearing protection code" but do not explain the severity of on the job noise exposure or specify what hearing protection was provided. Private treatment records dated in June 2005 include the Veteran's reports of decreased hearing since his service in Vietnam. An audiogram noted a positive history of noise exposure in the military as well as post-service occupational exposure. The Veteran's tinnitus was described as intermittent. The Veteran underwent a VA audiological examination in July 2006, during which he reported a history of in-service noise exposure and post-service occupational noise exposure. Regarding in-service noise exposure, he reported that he was exposed to firearms and artillery without the use of hearing protection. He reported that subsequent to service, he worked for a steel company for 30 years; working as crane operator, a laborer, a burner, and a grinder. He reported that he wore foam ear plugs when working as a grinder and a burner from 1987 to 1996. Following a review of the service records, the examiner diagnosed constant bilateral tinnitus. The examiner opined that since the Veteran's hearing was normal on discharge, it was more likely than not that the Veteran's tinnitus was a result of his occupational noise exposure. The Veteran underwent a second VA audiological examination in May 2010. The Veteran reported noise exposure in Vietnam, to include the aforementioned artillery fire incident. He reported that his right ear rang after such incident and has not stopped. He also reported that subsequent to service, he worked in a steel mill for 30 years with the use of hearing protection. Following a review of the service records, the examiner diagnosed tinnitus. The examiner opined that the current tinnitus was less likely than not due to the Veteran's service. In providing this opinion, the examiner explained that tinnitus due to noise exposure or acoustic trauma was known to have a noticeable onset immediately or soon following the incident. The examiner further stated that the Veteran's service treatment records were negative for complaints of tinnitus; however, concluded, that tinnitus was subjective and could not be objectively measured. In January 2013, a VA examiner reviewed the claims file, and opined that the Veteran's current bilateral tinnitus was not caused or a result of the Veteran's military service from 1968 through 1970. In support of this opinion, the examiner stated that the Veteran's service treatment records were negative for evidence of any acoustic trauma or a constant pathology of tinnitus. The examiner noted that the Veteran's discharge examination was also negative for complaints of tinnitus. He further noted that the date and circumstance of the claimed tinnitus onset "do or do not match the Veteran's military service period and circumstances of onset during military service." The examiner also offered other causes of tinnitus, to include, hearing loss; loud noise; more than 200 medicines; countless natural foods and elements; and health problems such as allergies, tumors, and problems of the heart and blood vessels, jaws, dental work, and neck. The Board finds that the July 2006 and May 2010 VA examination reports, as well as the January 2013 addendum opinion report are of no probative value for a host of reasons. First, the July 2006 VA examiner failed to consider whether the lay statements of record presented sufficient evidence of the etiology of the Veteran's current tinnitus such that his claim, relating tinnitus to military noise exposure, could be established. See Dalton v. Nicholson, 21 Vet. App. 303, 311 (2007). Next, the May 2010 VA examiner offered an inadequate rationale for the conclusion that the current tinnitus was not related to the Veteran's service; particularly, the examiner noted that tinnitus due to noise exposure or acoustic trauma was known to have an onset immediately or soon after the incident, and the examiner stated that the Veteran reported onset of tinnitus after an artillery fire incident. The examiner concluded that, since tinnitus was subjective and could not be measured objectively, it was less than likely that the Veteran's tinnitus was due to acoustic trauma. Such rationale is contradictory and thus, not probative of whether the current tinnitus is related to the Veteran's noise exposure in service. The January 2013 VA examiner noted that the date and circumstance of the claimed tinnitus onset "do or do not match the Veteran's military service period and circumstances of onset during military service." Such a statement is contradictory, and is of no probative value. Moreover, while the examiner also listed other causes of tinnitus (discussed above), he failed to explain how the Veteran's current tinnitus could have been caused by any of the other causes, such as, whether the Veteran had an allergy or ate countless natural foods. Thus, the opinion is insufficient for purposes of adjudication because it lacks supporting analysis and refers to medical evidence that is inapplicable. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the bases of the aforementioned negative opinions, in significant part, appears to be that the Veteran's service treatment records are negative for complaints of or a diagnosis of tinnitus. However, while the absence of contemporaneous medical evidence is a factor in determining the credibility of lay evidence, lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current claim, the Veteran has asserted, in numerous statements and during the aforementioned VA examinations, that the symptoms of his tinnitus disability have been continuous since the above described artillery incident during his service in Vietnam. Further, the Veteran's wife submitted a statement corroborating the Veteran's statements, as she has been married to the Veteran since 1970, and recalled the Veteran telling her about the artillery incident in Vietnam. Moreover, the history the Veteran provided about noise exposure in service, where he was exposed to noise from serving as an infantryman in Vietnam, is consistent, competent, and credible. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's DD Form 214 also demonstrates his MOS as a light weapons infantryman, supporting his claimed exposure to noise. Finally, the AOJ conceded the Veteran's exposure to noise during service based upon the Veteran's MOS and his combat service. Finally, tinnitus is subjective and the kind of condition which lay evidence is competent to describe, to include the time of onset. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In addition, the Veteran has presented written statements regarding his in-service incurrence of tinnitus, and there is evidence of a current tinnitus disability. Affording the Veteran the benefit of the doubt, as required by law and regulation, service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs