Citation Nr: 1327045 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-17 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Paul, Minnesota, which, in pertinent part, denied the claim of service connection for tinnitus. FINDINGS OF FACT 1. The Veteran is a combat veteran and was exposed to acoustic trauma in service. 2. The Veteran has provided credible lay evidence of in-service onset of tinnitus and unremitting tinnitus since service. 3. The Veteran's tinnitus was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (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 disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) and thus, as discussed in further detail below, 38 C.F.R. § 3.303(b) does not apply to the Veteran's claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is 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); 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). Notwithstanding the above, however, 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 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran's service records confirm receipt of decorations including the Combat Infantryman Badge, the Vietnam Service Medal with one Bronze Star, and Vietnam Campaign Medal. The Veteran's military occupational specialty was that of a light weapons infantryman. Based on the foregoing, the Board finds that the Veteran is a combat veteran for VA purposes. Pursuant to 38 U.S.C.A. § 1154(b) with respect to combat veterans, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); see also 38 C.F.R. § 3.304(d). 38 U.S.C.A.§ 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Veteran separated from service in October 1967. At the time of his August 1967 service separation examination, normal findings were reported for the ears. On his August 1967 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear, nose, or throat trouble. In October 2010, the Veteran requested service connection for tinnitus. He stated that in 1966, while working in infantry and carrying a portable phone, an incoming mortar knocked him down. He indicated that he was unable to hear for days after the incident. In a June 2010 statement in support of claim, the Veteran indicated that he was in Vietnam and exposed to mortar blasts which caused a temporary loss of hearing up to 48 hours. The Veteran also submitted private treatment records from his physician demonstrating complaints of tinnitus in treatment records starting in April 2010. In July 2010, the Veteran was afforded a VA examination. At the time of the examination, the Veteran stated that he did not have tinnitus. Following examination, the examiner stated that, by history, tinnitus was less likely caused by or a result of military noise exposure. The examiner indicated that the Veteran stated that he did not have any ringing, humming, or buzzing in his ears and denied having tinnitus. In his September 2010 notice of disagreement, the Veteran indicated that when the VA examiner asked if he had tinnitus, he understood the question to be at that moment. The Veteran stated that although he did not hear ringing in the ears at that moment, he had had recurrent ringing in the ears for many years and that within the last year he had heard chirping in the left ear. In his June 2011 substantive appeal, the Veteran indicated that he was rushed at the time of the examination and did not understand the question. He stated that he had had continuous and bothersome ringing and buzzing in his ears for many years and believed his condition was related to the mortar explosions he experienced in Vietnam combat which had left him temporarily deaf. The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as ringing in the ears and loss of hearing as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran's lay statements regarding exposure to live fire while in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service in Vietnam. Additionally, the Board accepts the Veteran's account of having been in close proximity to a mortar explosion. The Board finds that tinnitus was incurred in and is attributable to service. Entitlement to service connection for tinnitus cannot be established through application of 38 C.F.R. § 3.303(b) , however 38 C.F.R. § 3.303(d) affords that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. To the extent that the Veteran denied "ear troubles" at separation, the Board finds this so be an overly general statement of denial and of limited probative value when compared to his current specific and consistent statements endorsing ringing in the ears. With regard to the VA examiner's July 2010 opinion that the Veteran's tinnitus was not due to service, the Board finds such opinion to be of limited probative value. The examiner based his conclusion on the Veteran's denial of having tinnitus at the time of the examination. The Veteran has made it clear on several occasion that he thought he was being asked if he had tinnitus at the time of the VA examination and not in general. In addition, the examiner did not address the Veteran's assertions noted in the claims folder that he had had tinnitus for many years which he felt was related to an in-service explosion. As such, the Board finds the examiner's opinion to be of limited probative value. The Veteran has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced recurrent tinnitus symptomatology since service discharge. As noted above, the Board finds the Veteran's reports of recurrent symptoms to be credible; therefore, as the evidence is in relative equipoise, the Board finds that the Veteran currently has recurrent tinnitus. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 . ORDER Service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs