Citation Nr: 1325928 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-32 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam era from July 1969 to June 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the San Diego, California Regional Office (RO), which denied service connection for tinnitus. The Board notes that the Veteran originally submitted his July 2009 claim to the Oakland, California RO, but the San Diego RO rendered a June 2010 rating decision. Subsequently, the claim was transferred back to the Oakland RO. The Board further notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals documents are either duplicative of the evidence in the paper claims file or irrelevant to the issue of appeal. FINDING OF FACT The Veteran's current tinnitus, which originated in service, is related to his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1137, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Principles The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claim for service connection for tinnitus, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service connected compensation benefits, a veteran must show: "(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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection if such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as 'sufficient proof of service connection,' even if no official record of such incurrence exists." Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran served during the Vietnam era and in Vietnam as a United States Army general vehicle repairman. VA examinations dated January 2010 and March 2011 show that the Veteran serviced tanks and track vehicles, that he endured mortar fire and explosions, and that after service he worked as a car mechanic, regularly using power tools. He did not wear ear protection during service or while working as a car mechanic after service. The Board notes that the Veteran is service connected for PTSD and hearing loss, due in part to exposure to mortar fire and explosions. Service treatment records are negative for tinnitus. An entrance examination dated March 1969 noted normal ears and drums and found the Veteran fit for service. A separation examination dated June 1971 also noted normal ears and drums and that the Veteran was qualified for separation. The Veteran did not complain of ringing in his ears but reported that his condition was "good." VA medical records dated February 2006 show that the Veteran denied ringing in his ears. However, in a July 2009 claim for service connection, he claimed that he did have ringing in his ears. In the January 2010 VA examination, he again complained of tinnitus but noted that the ringing would occur "once every couple of weeks" and would last "a few minutes." When asked when his symptoms began, he simply stated that he had "noticed it for a while." The examiner opined that the Veteran's symptoms were not consistent with the accepted definition of true tinnitus but rather "head noise," a condition commonly experienced by the general population. The examiner also opined that the Veteran's symptoms were less likely than not related to his military service because the service treatment records were negative for tinnitus and because the frequency and duration of the Veteran's symptoms were not consistent with tinnitus. A June 2010 rating decision denied the Veteran service connection for tinnitus based on a negative January 2010 VA examination and negative service treatment records. However, the RO granted service connection for hearing loss based on the January 2010 VA examiner's opinion that it was at least as likely as not due to excessive noise exposure in service. The RO assigned a noncompensable rating based on audiometric testing demonstrating that the Veteran's hearing loss was not severe enough to warrant compensation. The Veteran appealed in a September 2010 notice of disagreement, claiming that acoustic trauma from rocket and mortar attacks caused tinnitus. In the March 2011 VA examination, the Veteran reported that he sometimes had "a little ringing" but not often, stating that it would happen once every couple of weeks and that "it might last a few seconds." He said that he had experienced ringing in his ears for a "few years" but no longer than five years ago, i.e. in 2006, about 35 years after service. The March 2011 VA examiner opined that the symptoms were "less likely as not caused by noise while in the military" because the Veteran reported a slight ringing that lasted a few seconds once every couple of weeks and because he reported that he only had it a few years but no more than five years. The examiner noted a diagnosis of intermittent recurrent tinnitus. In a November 2011 VA Form 9, the Veteran asserted that he has had tinnitus since his service in Vietnam and that he continues to experience it. First, the Board finds that the Veteran currently has tinnitus. In the July 2009 claim for service connection, the Veteran stated that he had ringing in his ears. In the January 2010 VA examination, he again complained of tinnitus, noting that the ringing would occur "once every couple of weeks" and would last "a few minutes." In the March 2011 VA examination, the Veteran reported that he still had ringing in his ears. Lay persons are competent to report experiencing symptoms of tinnitus-a ringing, buzzing, roaring or clicking in the ears. See Charles v. Principi, 16 Vet. App 370 (2002) (Veteran competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. The Board also finds the Veteran's statements credible as they are generally consistent with the evidence of record. Additionally, the March 2011 VA examiner noted a diagnosis of intermittent recurrent tinnitus. The Board notes that the March 2011 VA examiner reported that the claims file was not available for review. Regardless, the Board finds the examination to be adequate because records from this examination indicate that the examiner considered the relevant history of the Veteran's symptoms, she provided a sufficiently detailed description of the disability, and she provided an analysis to support her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Thus, the Board finds that the weight of the evidence supports a finding that the Veteran currently has tinnitus. Second, the Board accepts the Veteran's account of an in-service incurrence of tinnitus because the Veteran served in combat. In the November 2011 VA Form 9, the Veteran contends that he has had tinnitus since serving in Vietnam. The Board notes that the Veteran served in combat and is therefore entitled to the application of 38 U.S.C.A. § 1154(b). Any evidence which is probative may be used by a veteran to support an assertion that the veteran engaged in combat. VAOPGCPREC 12-99. In the January 2010 VA examination, the Veteran reported that while serving in Vietnam he worked on tanks and track vehicles and that he endured explosions and mortar fire. In the March 2011 VA examination, the Veteran claimed that while in service, he worked on tanks, personnel carriers and as a mortar platoon mechanic, and that sometimes mortars were fired in the area he was working. Joint Services Research Records Center (JSRRC) records dated May 2010 corroborate this, noting that in May 1971 the Quang Tri Combat Base-where the Veteran was likely located at the time-received rocket fire. The DD 214 also shows that the Veteran was stationed in Vietnam at that time. The Board finds satisfactory evidence of service incurrence of tinnitus and that the Veteran's assertions are consistent with the circumstances of combat. Although there is some contrary evidence, it does not rebut the combat presumption. The June 1971 separation examination noted normal ears and drums and the Veteran reported that his condition was "good." In the March 2011 VA examination, the Veteran also reported that he had experienced ringing in his ears for a "few years" but no longer than five years ago, i.e. in 2006, about 35 years after service. In a February 2006 VA medical record, the Veteran denied ringing in his ears. Such minor inconsistencies, however, do not constitute clear and convincing evidence sufficient to rebut the confirmed noise exposure from rocket fire. The Board finds that the combat presumption applies and therefore accepts the Veteran's statement that his tinnitus began in service. Finally, because there is an approximate balance of evidence, the Veteran is entitled to the benefit of the doubt and the Board therefore finds that his tinnitus is related to military service. Military records and lay statements support such a finding. JSRRC records show that the Veteran was exposed to rocket fire while serving in combat. In the November 2011 VA Form 9, the Veteran asserted that he had experienced tinnitus since his military service. In a November 2012 representative statement, the Veteran's representative said that the Veteran stated that his tinnitus started in service and had never gone away. In the January 2013 informal hearing presentation, the Veteran's representative again asserted that the Veteran "is adamant that his tinnitus is related to his military service." As analyzed above, the Veteran is competent to report symptoms of tinnitus. The Board finds the lay statements credible, as they are generally consistent with each other and with the evidence of record. Two VA examinations, however, conclude that the Veteran's tinnitus is not related to military service. In the January 2010 VA examination, the examiner opined that the Veteran's symptoms were less likely than not related to his military service because the service treatment records were negative, and because the frequency and duration of the Veteran's symptoms were not consistent with the accepted definition of true tinnitus, but rather with normal head noise, a condition commonly occurring in the general population. Similarly, the March 2011 VA examiner opined that the Veteran's symptoms were "less likely as not caused by noise while in the military" because the Veteran reported a slight ringing that lasted a few seconds once every couple of weeks and because he reported that he had only experienced ringing for a few years and no earlier than five years before the 2011 examination. Again, as analyzed above, the Board notes that despite not reviewing the claims file, the examination was adequate. The Board finds that, in aggregate, the lay statements and confirmed noise exposure are about as probative as the two negative VA examinations. Although the VA examiners are experts and have experience with tinnitus, the Veteran is personally acquainted with his symptoms and in the best position to describe them. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert, 1 Vet. App. at 53. Finding an approximate balance of evidence, the Board gives the Veteran the benefit of the doubt and therefore finds a nexus between the Veteran's tinnitus and his military service. As the weight of the evidence reflects that the Veteran experienced tinnitus in service, he has been diagnosed as having current tinnitus, and there is a relationship between his tinnitus and his service, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303. ORDER Service connection for tinnitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs