Citation Nr: 1322607 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 11-07 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the above claims. FINDING OF FACT The Veteran's tinnitus had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting the claim for service connection for tinnitus, which represents a full grant of the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and there is no prejudice to the Veteran. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Jandreau, 492 F.3d at 1372. The evidence confirms the Veteran's current diagnosis of tinnitus. See March 201 VA examination report. Moreover, the RO conceded that the Veteran incurred in-service acoustic trauma as you served as a machinist's mate aboard the U.S.S. Hanson. See March 2011 Statement of the Case. Accordingly, the determinative issue is whether the current disability of tinnitus is related to military service. Tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established as a chronic disease diagnosed in service or on the basis of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran's claim for tinnitus may be established if competent evidence, including lay evidence, establishes that tinnitus had its onset in service or is related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding that the adjudicator must consider whether the lay statements of record presented sufficient evidence of the etiology of the Veteran's disability). In his January 2010 formal claim for VA compensation benefits, the Veteran stated that his tinnitus began during service with the Navy as he served often in the engine room aboard a ship with 5 inch guns that were used frequently. At the March 2010 VA examination, he reported unilateral tinnitus to the left ear that began during his second tour aboard the ship around 1966 and said it had progressively gotten worse over the years. The examiner noted that the Veteran was exposed to excessive noise as a machinist's mate without hearing protection and was also exposed to the large engines that powered the ship. The Veteran's statements regarding the in-service onset of ringing of the ears are competent because the matter is within lay observation. See Buchanan, 451 F.3d at 1336-37; see also Jandreau, 492 F.3d at 1377. Further, his account is internally consistent and consistent with the other evidence of record, including his DD-214. The VA examiner found that tinnitus was less likely than not related to service because of the absence of treatment for tinnitus in service compared to 49 other visits to sick call during his three years of service. The examiner explained that "it stands to reason that he would have reported it at some point during his medical visits." This opinion is not based on a sound factual premise with reference to accepted medical principles. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (holding that a medical expert opinion must rest on correct facts and reasoned medical judgment); Nieves- v. Peake, 22 Vet. App. 295, 302 (2008) (expert testimony must be the product of reliable principles). Rather, the examiner premised the opinion on what she "stands to reason" about the habits of military service members. In other words, this opinion is not based on the examiner's medical judgment on whether a particular kind of injury would have been noted in the Veteran's service treatment records, but on whether the Veteran would have been likely to mention symptoms of a disorder at any of the 49 sick call visits if he was truly experiencing those symptoms. Cf. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (explaining a determination of whether a particular kind of injury would have been noted is a medical judgment). Lastly, the Veteran stated that tinnitus had its onset in 1966 and he discharged from service in March 1967, reducing the number of instances of in-service treatment. Consequently, as the examiner's opinion does not convey sound medical principles, it does not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Thus, there is nothing in the record to contradict the Veteran's account of when his tinnitus started or otherwise undermine the credibility of his statements, and the Board finds the Veteran's lay statements regarding onset of tinnitus to be credible evidence. See Buchanan, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). Therefore, after resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service. The Veteran has a current diagnosis of tinnitus and the competent, credible and persuasive evidence places the onset of this condition in service. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Resolving all doubt in the Veteran's favor, entitlement to service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs