Citation Nr: 1321779 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-24 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active duty service from July 1972 to July 1975. This matter comes properly before the Board of Veterans Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). FINDING OF FACT Tinnitus is related to the Veteran's period of active duty service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the Veteran's claim for entitlement to service connection for tinnitus. See 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 (2012). This is because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). 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); see Hickson v. West, 12 Vet. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). The Veteran claims that he currently has tinnitus as a result of in-service noise exposure. He reports that he was exposed to noise from aircrafts, helicopters, large weapons, and hand grenades while on active duty. He claims that his tinnitus had its onset in service and that his symptoms have continued since that time. As reflected in the claims file, the Veteran served on active duty from July 1972 to July 1975. His DD 214 lists his occupational specialty as a parachute rigger. An October 2012 rating decision, granted service connection for bilateral hearing loss, based on the Veteran's exposure to noise while in service. An October 1974 service treatment record shows the Veteran's in-service report of ringing in his left ear. At that time, he also reported having kidney pain and was provided with a diagnosis of pyelonephritis. Subsequent service treatment records are negative for reports of tinnitus or problems with his ears. A July 1989 private audiometric record reflects the Veteran's reported history of tinnitus. The Veteran underwent a VA audiologic examination in May 2011, during which he reported experiencing recurrent tinnitus since service. He reported noise exposure as a civilian from carpenter power tools, saws, drills, chainsaws, generators, and tractors. Following a clinical examination, the examiner provided a diagnosis of tinnitus and bilateral, sensorineural hearing loss. The examiner responded "yes" to whether tinnitus was "as likely as not" a symptom associated with hearing loss. The examiner stated, however, that an opinion regarding the etiology of the Veteran's tinnitus could not be made without review of the claims file, which was not available at the time of the examination. Thereafter, VA forwarded the claims file to the May 2011 examiner for review, and the examiner provided an addendum opinion in July 2011 regarding the etiology of the Veteran's tinnitus. After reviewing the claims file, the examiner opined that the Veteran's tinnitus was less likely as not caused by or a result of military noise exposure. The examiner noted that the Veteran's service treatment records showed his report of tinnitus and stated that this report appeared to be the result of pyelonephritis. The examiner then highlighted that once this condition resolved, there were no other reports of tinnitus until 1989, some fourteen years following discharge. In an October 2012 statement, the Veteran essentially reiterated his contention that his tinnitus began during service and that his symptoms have continued since that time. He explained that after his initial report of tinnitus, he continued to experience symptomatology throughout the duration of his service and thereafter. The Veteran explained that he did not make additional reports of his tinnitus during service because he was told that there was no treatment for the disorder. He further indicated that he did not report his tinnitus every time he went in because that was not how a good soldier was supposed to behave. Lastly, the Veteran explained that he did not report having tinnitus at the time of his separation from the military because he thought nothing could be done for his disorder and he did not want to delay his discharge. As directed by the February 2013 Board remand, VA sought clarification from the May 2011 examiner regarding the July 2011opinion. Specifically, VA requested that the examiner provide the medical basis to support the opinion relating the Veteran's in-service report of tinnitus to the in-service pyelonephritis diagnosis. In providing the addendum opinion, the examiner was also directed to consider the Veteran's competent lay statements regarding in-service noise exposure, the in-service onset of his tinnitus, and a continuity of tinnitus symptomatology since service. In an April 2013 addendum report, the May 2011 examiner reiterated the opinion that the Veteran's tinnitus was less likely as not caused by or a result of military noise exposure. The examiner essentially reiterated the previous observations made in the July 2011 addendum opinion and highlighted that the Veteran's in-service report of tinnitus coincided with the in-service pyelonephritis diagnosis. The examiner again noted that when the Veteran's pyelonephritis was treated and resolved, the claims file did not show any further reports of tinnitus until 1989. While the examiner acknowledged the Veteran's contention that his tinnitus was due to military noise exposure, the examiner emphasized that he denied ear complaints during his discharge examination and that he did not serve in combat. The examiner also highlighted that there were indications of significant civilian noise exposure. The Board finds the VA examiner's July 2011 and April 2013 opinions to be of limited weight. Although the examiner reviewed the claims folder and interviewed the Veteran, the examiner's opinions do not discuss the Veteran's lay statements as to his noise exposure in service and his tinnitus since that time. In forming the medical opinions, the examiner relied solely on the facts that the Veteran made no subsequent reports of tinnitus following his 1974 report. But see 38 C.F.R. § 3.303(d) (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). In his October 2012, the Veteran explained why he made no further reports of tinnitus during service, and the Board finds his explanation in this regard to be credible. Additionally, by emphasizing that the Veteran did not engage in combat, the examiner did not acknowledge that the Veteran's in-service noise exposure has been conceded. Finally, although the examiner appeared to relate the Veteran's in-service tinnitus report to the in-service pyelonephritis diagnosis, the examiner did not identify any medical rationale to support this opinion. Nieves-Rodriguez v. Peake, 22 Vet. App.. 295 (2008) (noting that a medical opinion that contains only data and conclusions is not entitled to any weight). For these reasons, the Board assigns limited weight to the examiner's opinions as they do not address all pertinent evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). With regard to the Veteran's lay assertions, the Veteran's statements are competent evidence to relay that his tinnitus symptoms began in service, and to describe continued symptoms since service. See Jandreau v. Nicholson, 492 F.3d 1372, 137 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describing symptoms later diagnosed by a medical professional). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, it is of importance to note that tinnitus is a type of disability that lends itself to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2004) (finding that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Board finds that the Veteran's statements as to the in-service onset of his tinnitus are further supported by other evidence of record. The Veteran's service treatment records include his report of tinnitus. As determined above, the Board finds the Veteran's explanation as to why he made no further reports of tinnitus in service is deemed credible. Moreover, there is no evidence of record that contradicts his statements in this regard. Thus, the Veteran's statements regarding the in-service onset of his tinnitus are considered credible evidence to support his claim. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board acknowledges that the Veteran reported experiencing noise exposure as a civilian. However, the Board cannot reasonably disassociate the nature or severity of the Veteran's in-service noise exposure from complaints of tinnitus as a consequence of other post-service experiences. Further, in light of the RO's October 2012 decision to grant service connection for bilateral hearing loss, it is worth noting that "an associated hearing loss is usually present" with tinnitus. See THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Additionally, "high frequency tinnitus usually accompanies [noise-induced] hearing loss." See THE MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear. While having to rely on its own reading of medical treatise evidence regarding a relationship between tinnitus and sensorineural hearing loss is not evidence that the Board would find as useful as the report of a qualified examiner who could discuss such a relationship in this particular case, the Board finds that the evidence provides a sufficient basis in this case on which to resolve reasonable doubt in favor of the Veteran. Therefore, resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs