Citation Nr: 1325889	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-26 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart 


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from December 2003 to March 2005, including service in Iraq.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in October 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for tinnitus.


FINDING OF FACT

The Veteran's tinnitus had its onset in service.


CONCLUSION OF LAW

Tinnitus was incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for tinnitus, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  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, 581 F.3d 1313, 1316; 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, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran asserts that service connection for tinnitus is warranted because he has had this condition since a close improvised explosive device (IED) occurred while serving in Iraq.  The Veteran stated in his Substantive Appeal that he had not reported tinnitus during service because other people had serious injuries, such as amputations, and that he had so informed the VA audiologist.

Service treatment records (STRs) show no indication of complaint of tinnitus during service.  The Veteran was discharged from service in March 2005.  It does not appear that he received a separation physical examination.

In a VA initial psychiatric progress note, dated in March 2010, the Veteran endorsed hearing a ringing sound at night.

The file contains a Statement in Support of Service Connection for Posttraumatic Stress Disorder (PTSD), submitted in April 2010, in which the Veteran asserted that on May 6, 2004, he was traveling in Iraq when an IED detonated behind his vehicle, lifting it off the ground.  The Veteran asserted his hearing was temporarily impaired in the explosion, and after his hearing returned a ringing sound remained.  In support of his statement, the Veteran submitted an undated "buddy statement" by Command Sergeant Major (CSM) RR asserting that on May 6, 2004, CSM RR was driving in a convoy with the Veteran in which an IED detonated near the Veteran's vehicle, lifting it approximately two feet off the ground.  CSM RR urged that the Veteran be awarded a Combat Action Badge.

The Veteran had a VA audiological evaluation in September 2010, performed by an audiologist who reviewed the claims file.  The Veteran complained of current situational hearing problems and constant ringing tinnitus in both ears; he complained the tinnitus made it hard to fall asleep and that it was a distracting influence that sometimes made it hard to concentrate.  The Veteran expressed his belief that tinnitus stated after the loud IED explosion behind his truck and had been constant since that time.  The audiologist administered an audiometric examination that disclosed the Veteran to have clinically normal hearing bilaterally.  In regard to tinnitus, the audiologist stated it was not possible to provide an opinion regarding whether tinnitus was related to military noise exposure without resorting to mere speculation.  As rationale, the audiologist noted that the Veteran's exposure to the sound of weapons and explosions in Iraq would have put the Veteran at considerable risk for noise-induced tinnitus, but STRs demonstrated that the Veteran effectually denied current tinnitus on two occasions after the May 2004 incident.  The audiologist was unable to reconcile or explain this discrepancy from an audiological standpoint.  Further, because the Veteran had clinically normal hearing on examination the audiologist could not make a connection to between tinnitus and any physical cause for hearing loss.   

Here, based on the Veteran's credible report of the onset of his tinnitus while serving in Iraq, his competent lay account of the in-service IED explosion and his explanation for his failure to report having the disability in service, the circumstances of his service, the diagnosis of tinnitus, and resolving all reasonable doubt in his favor, finds that service connection for tinnitus is warranted.


ORDER

Service connection for tinnitus is granted.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs