Citation Nr: 1322006 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 11-00 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1967 and from July 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the Veteran's claim. In March 2011, the Veteran presented sworn testimony during a personal hearing in Phoenix, Arizona, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. FINDING OF FACT The Veteran has tinnitus that is as likely as not related to his active duty service. CONCLUSION OF LAW The Veteran likely has tinnitus that is the result of disease or injury incurred during his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claim for service connection for tinnitus, no further discussion of these VCAA requirements with regard to this issue is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military 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 for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau, 492 F.3d at 1377. Here, the Veteran asserts that he has tinnitus that is due to in-service noise exposure. See, e.g., the March 2011 Board hearing transcript. Specifically, he maintains that he sustained acoustic trauma when he was routinely exposed to loud explosions from rockets, mortars, and fire fights during his first period of military service. See Id. at pgs. 4-5. He asserts that he was additionally exposed to small arms and mortar fire in his military occupational specialty (MOS) as a rifleman during his second period of service. Id. The Board has thoroughly reviewed the record and concludes that the evidence supports a finding that the Veteran's currently diagnosed tinnitus was incurred during his active duty service. The Board acknowledges that the STRs from both periods of the Veteran's service are absent of any documentation of in-service complaints of, or treatment for, tinnitus. In particular, the September 1964 and June 1975 service separation examinations showed no indication of tinnitus or related complaints. As indicated above, the record also demonstrates that the Veteran served on active duty from May 1964 to May 1967 and from July 1973 to July 1975. He served in the Republic of Vietnam during his first period of active duty and he is the recipient of the CIB. Accordingly, acoustic trauma as a result of combat during his initial period of active duty is conceded. The Veteran's DD-214 shows that his MOS for his second period of service was rifleman. The Board additionally finds that the Veteran's MOS in his second period of active duty service is consistent with noise exposure from small arms and mortar fire during periods of training. The Veteran has indicated that he has suffered from tinnitus dating from prior to initial his military discharge in May 1967. See the March 2011 Board hearing transcript, pg. 5. He testified under oath that the tinnitus symptomatology began during service and has continued to this day. Id. at pg. 5-7. He further stated that he simply accommodated for the tinnitus and did not seek treatment. Id. at pg. 8. The Board has no reason to disbelieve the Veteran's sworn testimony regarding the existence of tinnitus symptoms during service and the continuation of said symptoms following his military discharge. As noted above, 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, 492 F.3d at 1377; Buchanan, supra. The Veteran testified under oath concerning his in-service acoustic trauma which resulted in tinnitus that continued in the years since his initial May 1967 military discharge, through his second period of service, and into the present day. See the March 2011 Board hearing transcript, pgs. 5-9. As previously discussed above, the Veteran is competent to report his experiences and symptoms in service. Further, the Board notes that tinnitus is subjective-the kind of condition to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation). Thus, the Board finds that the Veteran is competent to relate a history of having experienced ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). A layperson is also competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398,403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. The Board recognizes that the Veteran did not report tinnitus symptomatology at any time during his two periods of military service including upon his second military enlistment in July 1973. However, in considering the evidence of record, the Board finds that the Veteran's currently diagnosed bilateral tinnitus cannot be reasonably disassociated from his conceded in-service acoustic trauma. In arriving at this decision, the Board relies on the Veteran's documented in-service noise exposure and his credible assertions that he began experiencing tinnitus in service and has continued to experience related symptomatology since his military discharge. The Board recognizes that the Veteran was afforded a VA examination in January 2010 to address the claimed tinnitus. The examiner noted the Veteran's report of constant tinnitus. The examiner further indicated that the Veteran had post-service occupational noise as an avionics technician. The examiner concluded that "[s]ince there is no documentation of tinnitus in the Veteran's STRs based on the Veteran's reported history of significant noise exposure both during and after military service, it is not possible to determine the etiology of the tinnitus without resorting to mere speculation." Similarly, in an August 2010 addendum opinion, the VA examiner indicated that "[s]ince there is no documentation of tinnitus in the Veteran's STRs and no hearing loss was incurred while in service and there is no current hearing loss, based on the Veteran's history of in-service and post-service noise exposure (avionics technician exposed to aircraft for 25 years), it is not possible to determine if the tinnitus is related to in-service noise exposure without resorting to mere speculation." The Board recognizes the January 2010 and August 2010 VA medical opinions are admittedly speculative and are expressly unable to conclusively determine the etiology of the claimed tinnitus. Notably, the Court held in Jones v. Shinseki, 23 Vet. App. 382 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and that the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Here, although the January 2010 and August 2010 VA medical opinions indicated that the examiners could not provide a conclusion as to medical nexus without resorting to speculation, the examiners went on to explain the rationale behind this determination. In this case, the Board notes that the VA examiners' conclusions that it would be speculation to opine whether the Veteran's tinnitus is due to his military service are sufficiently supported by a thorough rationale. See Jones, supra. Nevertheless, the Board has weighed the probative evidence of record including the Veteran's competent and credible assertions concerning continuing tinnitus symptomatology versus the speculative medical opinions set forth by the January 2010 and August 2010 VA examiners, and finds that the evidence is at least in equipoise as to the matter of whether the Veteran's currently diagnosed tinnitus is related to his military service. The benefit of the doubt rule is thus for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection for tinnitus. See 38 U.S.C.A § 5107 (West 2002). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs