Citation Nr: 1327284 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-23 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to December 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2009, the Veteran testified at the RO before a Decision Review Officer. In October 2010, he testified via videoconference before the undersigned Veterans Law Judge. Written transcripts of each of these hearings have been added to the claims file. This issue was previously presented to the Board in May 2011, and again in February 2012. On each occasion, it was remanded for additional development. In May 2011, the agency of original jurisdiction (AOJ) was requested to provide the Veteran a VA medical examination and opinion, and to obtain additional VA treatment records. A VA examination was accomplished in June 2011, and the RO obtained the requested records. In February 2012, the Board ordered the AOJ to obtain an addendum to the June 2011 examination report. This was accomplished in September 2012. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. Symptoms of tinnitus first manifested in service. 3. Symptoms of tinnitus have been continuous since separation from service. 4. The Veteran has a current diagnosis of tinnitus. 5. The Veteran's current tinnitus is related to exposure to loud noise in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. The Board also notes that the Veteran had a video hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with this regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Again, however, any failure by the Board to fully comply with 38 C.F.R. § 3.103 has been rendered moot by the favorable outcome of this decision. The Veteran seeks service connection for tinnitus. He asserts he has tinnitus as a result of his noise exposure during service, to include his training to qualify on the M1 rifle. He has stated he reported ringing in his ears at that time, and was told this would go away over time. He has also stated that while hospitalized during service for an unrelated disorder, he told a medical care provider about his tinnitus, and was told nothing could be done, so he ceased pursuing further medical treatment for his tinnitus either during service or thereafter. He asserts, however, that his tinnitus has remained constant since service. 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). 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). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In this case, however, tinnitus is not among the disorders listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Upon review of the evidence, the Board concludes that the Veteran was exposed to loud noises during service. His service treatment records, including his service separation examination, are negative for any diagnosis of or treatment for tinnitus. At service entrance, a pre-existing hearing loss was noted upon medical evaluation. He has asserted that he first noticed symptoms of tinnitus after qualifying with the M1 rifle during basic training. Service personnel records confirm that the Veteran was trained on the use of the M1 rifle and received the M1 expert qualification badge. The Board also finds the Veteran's assertions in this regard to be credible, as they are consistent with the circumstances of service and are not otherwise contradicted within the record. Despite his lay status, the Veteran is competent to testify regarding such observable symptomatology as a ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence) see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). At both his July 2009 and October 2010 personal hearings, the Veteran stated that he first noticed his tinnitus during service, and that his symptoms have been constant since that time. Pursuant to the Board's remand orders, the Veteran was afforded a VA audiological examination in June 2011. His claims file was reviewed in conjunction with the examination. Audiometric testing was conducting, indicating a mild to severe sensorineural hearing loss in the right ear and a mild to moderately severe sensorineural hearing loss in the left ear. Regarding the Veteran's reported tinnitus, the examiner found it less likely than not that the Veteran's current tinnitus had its onset in service, or was otherwise related to any incident therein. This opinion was based on the fact the Veteran's hearing acuity did not undergo a shift during his period of active duty. In reaching this determination, the examiner reviewed the Veteran's service treatment records, to include his service entrance and separation medical examinations. In September 2012, this same examiner provided an addendum to her June 2011 prior opinion. The examiner stated that, generally, tinnitus is "most commonly" the result of hearing loss. Therefore, because the Veteran's hearing loss, which was noted at service entrance, remained stable during service, it was less likely than not that his tinnitus had its onset at that time, or was otherwise related to any incident of service. Rather, the Veteran's tinnitus was more likely related to whatever damage he sustained prior to service, resulting in his pre-existing hearing loss noted at service entrance, or was the result of his occupation as a mechanic, which likely involved exposure to loud noises. In support of his claim, the Veteran has supplied an April 2012 statement from R.C.M., M.D., a private physician. Dr. M. stated that following service, the Veteran reported that he used hearing protection whenever he was exposed to loud noise. No such hearing protection was provided during service, according to the Veteran's account. Thus, Dr. M. concluded the Veteran's current tinnitus was "secondary to exposure to loud noise while serving in the military." "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In the present case, the Board finds both the VA and private examiners to be competent medical experts and thus qualified to offer opinions on this issue. The VA examiner's opinion, however, by suggesting the Veteran's tinnitus likely did not have its onset during service, implicitly discounts the Veteran's own testimony regarding when his tinnitus first began. As already discussed above, the Veteran is competent to report such observable symptomatology as tinnitus. See Charles, 16 Vet. App. at 374. Additionally, the Board has found the Veteran's testimony in this regard to be credible. Finally, a private physician has provided a medical opinion statement confirming that the Veteran's current diagnosis of tinnitus is likely the result of his noise exposure during service, and such noise exposure, in the form of rifle training, has itself been confirmed by the Veteran's service personnel records. Therefore, affording the Veteran the benefit of the doubt pursuant to 38 U.S.C.A. § 5107, service connection for tinnitus is granted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs