Citation Nr: 1322988 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-16 539 ) 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 Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to February 1965. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus. The claim was previously before the Board in November 2012, at which time it was remanded for additional development, to include providing the Veteran additional notice and inviting him to submit additional evidence. This was accomplished in correspondence dated in January 2013. As such, the Board finds that there has been substantial compliance with the mandates of the November 2012 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran is competent to report having experienced tinnitus since service. 2. There is competent clinical evidence of record that the Veteran's tinnitus is causally related to service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 303, 3.304 REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to Court decisions, it surely applies to those of a superior tribunal, the Federal Circuit. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and tinnitus, as an organic disease of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Here, the Veteran contends that he has tinnitus as a result of active service; specifically, he claims that he began experiencing tinnitus as a result of in-service noise exposure, to include job duties performed near a flight line while in the Air Force. The first element of service connection is medical evidence of a current disability. The evidence of record includes a diagnosis of tinnitus. As such, this element is satisfied. The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was Air Policeman with flight line duties. In addition, in a May 2010 rating decision, the Veteran was granted entitlement to service connection for bilateral hearing loss after the RO conceded that he was exposed to hazardous military noise. Based on the forgoing, exposure to acoustic trauma in service is conceded as consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury. Although the Veteran's treatment records are negative for any complaints or diagnoses of tinnitus, the Veteran has indicated that he suffered from a ringing in his ears since his period of active duty service. His January 1965 Report of Medical Examination at separation indicated that his ears were within normal limits, and the Veteran denied any ear trouble on his corresponding Report of Medical History. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has experienced tinnitus since service. In an April 2010 VA audiological examination report, the examiner diagnosed the Veteran as having bilateral tinnitus, but opined that the tinnitus was less likely as not due to in-service noise exposure on the basis that the Veteran purportedly indicated that he had only noticed tinnitus for a "couple years." In May 2011, the case was referred to a VA examiner for another opinion. The examiner indicated that the Veteran's tinnitus had had its onset in 2010, at the time of the previous examination. The examiner commented that "[a]t best" the tinnitus began in 2007. It was stated that this was too far delayed to be related to service in the early 1960's and that no research supported such a delay in the development of tinnitus. It was further noted that there were no complaints of tinnitus in the records. The examiner concluded that Although hearing loss and tinnitus are commonly present together they are not necessarily mutually occurring and have varying causes to include certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etc. Hearing loss does not cause tinnitus or vice versa. It is my opinion that it is NOT at least as likely as not that tinnitus is secondary to or aggravated by his service connected hearing loss. However, as discussed above, in-service acoustic trauma has been conceded in this case, and the Board has also found that the Veteran is competent to report that he has experienced tinnitus since service. Moreover, pertinent to tinnitus, the Board notes 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. Concerning this, the Board notes that 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." The MERCK Manual, Section 7, Ch. 85, Inner Ear. As noted above, the Veteran is already service connected for bilateral hearing loss due to in-service noise exposure. The Board acknowledges the findings of the May 2011 VA examination and the statement that there are many potential risk factors in the development of tinnitus. However, none of these other risk factors have been identified in the claims folder. While the examiner indicated that the earliest date of onset for the tinnitus was, at best, 2007, this has been consistently refuted by the Veteran, who has stated that the condition has been present since service. Therefore, since there appears to be no other established cause of the diagnosed tinnitus, and because tinnitus and hearing loss are often associated with each other (as was conceded by the 2011 examiner), with tinnitus often being a symptom of hearing loss, the Board finds that service connection has been established. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). As such, the Board will grant service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs