Citation Nr: 1323830 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-20 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The evidence of record is at least in equipoise regarding whether the Veteran's tinnitus is related to his active service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim of entitlement to service connection for tinnitus, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Analysis The Veteran essentially contends that his current tinnitus is related to service. He has specifically asserted that he suffered acoustic trauma during service. This exposure has been conceded and the Veteran has established service connection for a bilateral hearing loss disability as a result of his exposure to weapons fire and noise from service as a radio intelligence operator. He reports that he has had tinnitus ever since service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In making all determinations, the Board must fully consider the lay assertions of record. In this regard, 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) (noting that 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, 1376-77 (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 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. As to the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In this case, with respect current disability, the Veteran has indicated that he currently has tinnitus. In this regard, the Board notes that the Veteran, as a lay person, is competent to state that he has tinnitus as it is experienced through his senses and is subjective. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Furthermore, the Board finds the Veteran's statements are credible. With respect to in-service disease, a review of service treatment records, including the examination report at service discharge, does not reveal complaints consistent with, or a diagnosis of, tinnitus. However, the Board notes that the Veteran has stated that he had tinnitus in service. As noted above, the Veteran is both competent and credible with regard to his account of experiencing tinnitus. Additionally, with respect to an in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service to include radio headsets, incoming rocket explosions, and outgoing mortar fire, without hearing protection. He had additional post-service noise exposure to hunting rifles, pistols and shoguns, with hearing protection. The Board notes that the Veteran is competent to give evidence about what he experienced; and acoustic trauma and tinnitus are subject to lay observation. See supra Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is also credible. In this regard, the Board can find no reason to doubt that the events described by the Veteran during his hearing before the undersigned happened as reported by the Veteran or that he has experienced symptoms of tinnitus during service. On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. The letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. The Veteran's DD 214 reveals he served as a Morse code interpreter, with a related civilian occupation of a radio intelligence operator. The Duty MOS Noise Exposure Listing indicates that a radio operator-maintainer has a moderate probability of exposure to hazardous noise. Thus, the Board concedes the Veteran was exposed to hazardous noise. Indeed, the Veteran is already service connected for bilateral hearing loss due to evidence of hearing loss in service. While the June 2008 VA examiner was unable to provide a nexus opinion without resorting to mere speculation, and suggested several possible causes of the Veteran's tinnitus, the Board finds that the evidence is sufficient to grant entitlement to service connection for tinnitus. Based on the evidence of record cited herein and resolving the benefit of the doubt in favor of the Veteran in this case as the law requires, the Board finds that the criteria for a grant service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs