Citation Nr: 1326626 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-30 716 ) 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 Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran has a current tinnitus disability that is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. 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. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim should be granted. As reflected in his March 2010 claim, the Veteran asserts that he has had tinnitus since his exposure to acoustic trauma as an aircraft maintenance crewmember in service. Service personnel records indicate that the Veteran served as an aircraft mechanic and repairman during his service from September 1965 to September 1968, including in the Republic of Vietnam. The record thus reflects that the Veteran was likely exposed to very loud noise in service. The Board notes that the record, including service treatment records, does not indicate that the Veteran ever reported tinnitus or other such hearing problems in service, or that he was treated for or reported having tinnitus until his March 2010 claim, more than 40 years after his separation from service. Additionally, the record reflects somewhat contradictory statements from the Veteran and other evidence that call into question his credibility in reporting his claimed tinnitus and its onset. Despite the fact that he denied doing so in his November 2011 substantive appeal, the Veteran was noted on August 2011 VA audiology examination to have denied having tinnitus two times during the interview. Also, during a July 2010 VA audiology examination, it was noted that the Veteran's test results were inconsistent and did not appear to reflect his maximal effort, and there was noted to have been poor interest reliability. However, prior to the August 2011 VA examination, in his March 2010 claim, the Veteran asserted having tinnitus. Also, in an August 2010 statement, he again asserted having tinnitus, and even asserted that the noise from his tinnitus had drowned out the tones from his July 2010 VA audiological examination. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a current tinnitus disability. Furthermore, the August 2011 VA examiner opined that a hearing loss disability was at least as likely as not related to the Veteran's military service, given his likely noise exposure incurred as an aircraft mechanic. The examiner's opinion in August 2011, and again in a February 2012 addendum, was that tinnitus was not related to service, but was based on the fact that the Veteran denied tinnitus during his examination, and the examiner therefore finding that a tinnitus disability did not exist. However, as the Board finds that the Veteran has a current tinnitus disability, the Board finds the August 2011 VA examiner's opinion that his current hearing loss is related to in-service noise exposure as an aircraft mechanic to be probative evidence in favor of the Veteran's service connection claim for tinnitus. Given the above, the Board finds that the evidence pertaining to whether the Veteran's current tinnitus is related to service is at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that current tinnitus is related to service. Accordingly, the claim for service connection for tinnitus must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Finally, as provided for by the Veterans Claims Assistance Act of 2000, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. ORDER Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs