Citation Nr: 1319128 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-08 121 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1986 to January 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the RO which, in part, denied service connection for tinnitus. The Board remanded the appeal for additional development in January 2010 and March 2011. By rating action in August 2012, the AMC granted service connection for a respiratory disorder, including status post left lower lobectomy and secondary service connection for depression. The Veteran and her representative were notified of this decision and did not express dissatisfaction with the ratings assigned. Accordingly, these issues are no longer in appellate status and will not be addressed in this decision. FINDING OF FACT The Veteran's tinnitus is at least as likely as not related to service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, in light of the favorable decision in this case, the Board finds that any deficiency that may exist in complying with VCAA is harmless error. As this represents a complete grant of the benefit sought on appeal, no further discussion of VA's duty to notify and assist is necessary. Laws & Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In this case, tinnitus is not listed as a specified chronic disease under the provisions of 38 C.F.R. §§ 3.307, 3.309. 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 or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Tinnitus The Veteran contends that she has had intermittent ringing in her ears since service and believes that service connection should be established for tinnitus. There is positive and negative evidence in this case; as such, when resolving all doubt in the Veteran's favor, service connection for tinnitus is granted. Initially, it is acknowledged that the service records show that the Veteran's military occupational specialty (MOS) in service was that of a petroleum supply specialist. While the Veteran's service treatment records (STRs) show no complaints, treatment or diagnosis for tinnitus or any ear problems during service, a service audiogram, dated in January 1990, indicates that the Veteran was routinely exposed to hazardous noise, and that she wore triple flanged ear plugs. Based on the notation in the STRs, the Board will concede that the Veteran had noise exposure in service. 38 U.S.C.A. § 1154(a). On a Report of Medical History for service separation (Chapter 8) in December 1990, the Veteran denied any history of ear problems, hearing loss or dizziness, and no pertinent abnormalities were noted on examination at that time. Additionally, on her original application for VA compensation benefits, received in January 1993, and when examined by VA in May 1993, the Veteran made no mention of any hearing problems or tinnitus. VA treatment records associated with the claims file in January 2005, show that the Veteran was seen for various maladies on numerous occasions from February 2004 to January 2005. The outpatient notes show no complaints, treatment or abnormalities referable to any ear problems or tinnitus. In March 2004, the Veteran specifically denied any hearing loss or tinnitus. However, in a statement received in June 2005, the Veteran reported that she sometimes experiences intermittent ringing in her ears, light headedness and dizziness. The Veteran's statements were interpreted as a claim of service connection for tinnitus on a direct basis and as secondary to the lobectomy and associated depression. Of note, by rating decision dated in August 2012, service connection for residuals of pneumonia and status post lower lobectomy were granted. When examined by VA audiology services in June 2011, the audiologist indicated that the Veteran made various inconsistent statements regarding her tinnitus, initially reporting that it was constant, but later saying that it comes and goes throughout the day and lasts for 30 seconds. She described her tinnitus as "just a feeling" and "more like light headaches back then" and said that it began with explosives on the firing range in service. The Veteran reported that her tinnitus sometimes felt like something was crawling in her ear, and described it as a high pitched ringing, buzzing, pulsing, and cricket sounds. The audiologist commented that the Veteran's accounts and history of tinnitus lacked consistency and was a bit unclear, and opined that it was less likely than not that her reported tinnitus was due to exposure to acoustic trauma in service. The audiologist stated that she did not have the medical expertise to offer an opinion as to whether the Veteran's tinnitus was related to a respiratory disorder. In an addendum report, dated in June 2012, the VA audiologist indicated that she reviewed the claims file (which was not available when examined in June 2011), and that there was no evidence of tinnitus, hearing loss or any shift in thresholds on audiological examinations in service. The audiologist also indicated that the Veteran had normal hearing at present, and opined that her current tinnitus was not related to any noise exposure in service. In May 2013, the Board referred the claims file for a VHA opinion concerning whether the Veteran's tinnitus was related to noise exposure in service or, in the alternative, to her service-connected lobectomy and/or depression. In May 2013, the Chief, Division of Otolaryngology at a VA hospital indicated that the claims file was reviewed and provided a detailed description of the Veteran's complaints, medical history, and the findings from the prior VA audiological examination (discussed above). The examiner noted that tinnitus is a subjective condition, and that a determination of the presence of tinnitus at all, and the relation of tinnitus to a proximate cause such as noise, rests on the individual history. The examiner indicated that the VA audiologist who evaluated the Veteran in June 2011, made a judgment that her noise exposure in service was not likely to have been the proximate cause of tinnitus in this case, based upon the history and audiometric testing record. The examiner commented that there was nothing in the Veteran's statements that proved otherwise, to him. The examiner went on to note that a claim of a subjective complaint does not prove that the complaint exists, nor does it prove that it was truly related to noise exposure in service, and that there are some people who suffer tinnitus without a hearing loss. Not having interviewed the Veteran, the examiner stated that he was less able to make this determination than the VA audiologist with respect to whether the Veteran's current tinnitus was related to noise exposure in service or was otherwise related to service. As to the question of whether the Veteran's tinnitus was related to her service-connected respiratory disorder, lobectomy and depression, the examiner opined that a respiratory disease or lobectomy were not a proximate cause of tinnitus and was not at all likely to cause tinnitus. While depression may be associated with tinnitus in some cases, in the sense that depressed patients cope less well with tinnitus, depression does not cause tinnitus in an scientific sense. As previously noted, there is both positive and negative evidence of record. What the record does establish is that the Veteran was exposed to excessive noise during service. It also shows that the audiologist in June 2011 and June 2012 based her opinion on the absence of complaints, findings, or treatment during service. While the lack of contemporaneous medical records may be a factor that the Board can consider and weigh against a Veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's assertions of experiencing tinnitus since service were only addressed as being inconsistent in whether it was constant, intermittent, or just a feeling. The Veteran is competent to attest to her observable symptoms (whether constant or intermittent) of tinnitus however. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to the foregoing, although the physician indicated that the Veteran's tinnitus was not related to service based on the 2011 and 2012's VA medical opinion, he then went on to state that a claim of a subjective complaint does not prove that the complaint exists, nor does it prove that it was truly related to noise exposure in service, and that there are some people who suffer tinnitus without a hearing loss. Not having interviewed the Veteran, he added that he was less able to make this determination than the VA audiologist with respect to whether the Veteran's current tinnitus was related to noise exposure in service or was otherwise related to service. In this regard, the Board finds that the VHA opinion is of little persuasive value. Finally, the Board acknowledges that VA outpatient treatment reports from 2004 through 2005 do not reflect complaints of tinnitus. In fact, on some occasions the Veteran denied experiencing tinnitus. In this regard, the Board observes that her inconsistencies could be accounted for given that she at times described her tinnitus as intermittent. Accordingly, any such doubt is resolved in her favor. As noted, there is positive and negative evidence of record both for and against the claim. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In light of the Veteran's demonstrated in-service noise exposure, her statements of experiencing tinnitus since service, along with the less than persuasive medical opinions of record, the Board finds that the evidence for and against the Veteran's claim is in relative equipoise, and that the benefit-of-the-doubt rule is applicable. Resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs