Citation Nr: 1319122 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-37 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from April 1980 to August 1980 and on active duty from May 1999 to July 1999 when his reservist unit was deployed by presidential action to Italy to provide aircraft maintenance to support operations in Kosovo. The Veteran also had various other periods of ACDUTRA and inactive duty for training (INACDUTRA) as a member of the Michigan Army National Guard (from 1980 to 1986) and the Michigan Air National Guard (1986 to 2003). This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a July 2007 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for tinnitus. In May 2010, the Veteran testified before the undersigned Acting Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. In a decision issued in September 2010, the Board denied the Veteran's claim, and the Veteran thereafter appealed that decision to the Court. In May 2011, the Court vacated the September 2010 Board decision and remanded the matter for readjudication consistent with instructions outlined in a May 2011 Joint Motion by the parties. In November 2011, the Board remanded the appeal for further development, and upon return of the appeal to the Board, the Board requested an expert medical opinion from the Veterans Health Administration, which was rendered in December 2012. The Veteran and his attorney were provided with a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the attorney provided in May 2013. Any failure to fully comply with the Board's prior remand directives, to include obtaining a comprehensive list of the specific dates of the Veteran's various periods of ACDUTRA and INACDUTRA during the course of his 23 years of reservist service, or any failure to comply with the mandates of the Joint Motion, is rendered moot by the favorable disposition of the appeal. FINDING OF FACT The Veteran's tinnitus preexisted his 1999 period of active duty, but was permanently aggravated therein. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04(b), 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. In the instant case, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1132. Clear and unmistakable (obvious and manifest) evidence that the disability existed prior to service will rebut the presumption of soundness. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003. In the absence of a contention that a Veteran never made statements reporting a pre-service disability that are attributed to him or her, the statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237 (2012); see also Doran v. Brown, 6 Vet. App. 283, 286 (1994) (the presumption of soundness was rebutted by clear and unmistakable evidence consisting of the appellant's own admissions of a preservice disability). It is emphasized that the burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). When a condition is properly found to have been preexisting, the presumption of aggravation provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Because the evidence of record is sufficient to provide a basis for granting service connection on the theory of in-service aggravation of a preexisting disability, and for the sake of brevity, the Board will focus its analysis on the salient facts relevant to this theory of service connection. The Board further notes that awarding service connection for tinnitus on a theory of aggravation, as opposed to granting service connection on a theory of direct service connection, is not prejudicial to the Veteran, as the rating criteria for tinnitus consists of only one disability rating. 38 C.F.R. § 4.87, Diagnostic Code 6260; see Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation). While the Veteran's statements and testimony regarding the onset and chronicity of his tinnitus symptoms have some seeming inconsistencies (as outlined in the Board's prior remand and vacated decision), when viewed in their totality, including those made by the Veteran to the private audiologist who rendered a favorable etiology opinion in May 2013, the Veteran essentially contends that he experienced intermittent tinnitus prior to November 1993 (when he discharged a firearm while off duty), more regular symptoms after this incident in 1993, and near constant tinnitus after his noise exposure while serving on active duty in 1999. The Veteran's in-service exposure to acoustic trauma from firearms and aircraft noise is evidenced by the Veteran's receipt of the Small Arms Expert badge, as reflected on his DD Form 214 for his 1999 period of active duty, as well as his military occupational specialty during this period of service as an aircraft maintenance craftsman. Moreover, the Veteran's service treatment records reflect that his military noise exposure was deemed to be sufficient to warrant his enrollment in a hearing conservation program. Furthermore, although the Veteran was issued hearing protection, he reports that some of his duties required him to remove his hearing protection at times when he was nevertheless in the presence of acoustic trauma. His reports of this type of in-service noise exposure are corroborated by statements of record authored by service members who had in-service duties similar to his own. The Veteran's service treatment records fail to document any reports of experiencing tinnitus symptoms, nor do the records reflect a diagnosis of tinnitus. Rather, the Veteran's records reflect his consistent denial of any ear trouble, with the exception of his report of a left ear hearing impairment in 1993 that followed his discharge of a firearm during off-duty hours. However, as explained by the Veteran during his 2010 Board hearing, he denied any such symptomatology during service due to either his lack of knowledge regarding tinnitus and its symptoms or his unwillingness to report any symptomatology that could affect his job performance. As the symptoms of tinnitus are capable of lay perception, the Veteran is competent to report the onset, chronicity, and severity of his tinnitus symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Moreover, while there have been some inconsistencies in the Veteran's report of his tinnitus symptoms, the Veteran has consistently asserted that his tinnitus preexisted his period of active duty in 1999 and increased in severity therein. Based on the consistency of these reports, the Board finds this assertion to be credible. No hearing impairments, including tinnitus, were noted during the Veteran's May 1999 pre-deployment health assessment, thereby triggering the presumption of soundness. However, given that the Veteran has competently and credibly reported that his tinnitus preexisted service, the Veteran's statements alone constitute clear and unmistakable evidence to rebut the presumption of soundness and establish the preexistence of tinnitus prior to the Veteran's 1999 period of active service. See Horn v. Shinseki, 25 Vet. App. at 237; Doran, 6 Vet. App. at 286. Moreover, the VA otolaryngologist who provided an expert medical opinion in December 2012 specifically concluded that the Veteran's tinnitus preexisted this period of service. Accordingly, the presumption of soundness is rebutted. As the Veteran has also competently and credibly reported that his preexisting tinnitus increased in severity during this period of active service, increasing from a regular to constant occurrence, the evidence establishes that the Veteran's tinnitus increased in severity during this period of active service, thereby triggering the presumption of aggravation. Accordingly, absent a finding that this increase in severity was the result of the natural progress of the disease, aggravation is established. There is no evidence of record suggesting that the increase in severity of the Veteran's tinnitus during his 1999 period of active duty was a natural progression of this condition. Rather, the December 2012 VA otolaryngologist's expert medical opinion states that "[p]erhaps the stress of [the 1999 period of] active duty exacerbated his tinnitus" thereby leading to a progression of this disease. Accordingly, the evidence of record is insufficient to rebut the presumption of aggravation. Therefore, as the evidence of record establishes that the Veteran's tinnitus preexisted his 1999 period of active duty, but was permanently aggravated therein, a basis for establishing service connection for tinnitus has been presented, and service connection is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs