Citation Nr: 1327409 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 12-02 300 ) 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 Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for bilateral hearing loss but denied service connection for tinnitus. In addition, in an October 2010 rating decision, the RO denied service connection for tinnitus as secondary to the Veteran's service-connected bilateral hearing loss. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information or evidence. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § § 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal with respect to the service connection claim. 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. II. Service Connection The Veteran contends that his tinnitus is etiologically related to his active service and therefore contends that he is entitled to service connection. Considering all of the evidence of record, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 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 at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, supra. 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 Veteran. 38 U.S.C.A. § 5107(b). Service treatment records do not reveal any complaint, diagnosis, or treatment for tinnitus. The Veteran's Armed Forces of the United States Report of Transfer or Discharge (DD 214) reveals that the Veteran's specialty was that of an aviation support mechanical equipment technician. In its January 2012 Statement of the Case, the RO concedes acoustic trauma based on the Veteran's military occupation. In the Veteran's claim for VA compensation benefits received in February 2010, the Veteran stated that while serving on an aircraft carrier off the coast of Vietnam, his duties included being in charge of refueling the planes when they came in. He also stated that inadequate ear protection was provided, and that the tinnitus began at that time and continues to this day, being constant in nature. The Veteran also stated that he had no further noise exposure after his time in the military. In May 2010, the Veteran was afforded a VA audiological examination. The examiner noted that the Veteran reported that he first noticed the onset of his tinnitus approximately 15+ years ago, and that he could not recall a specific acoustic event giving rise to his tinnitus. The Veteran was diagnosed with bilateral sensorineural hearing loss due to acoustic trauma during service. While the examiner noted that tinnitus was as likely as not a symptom associated with the hearing loss, he was of the opinion that the Veteran's tinnitus was less likely than not caused by acoustic trauma in service. The reasoning given was that tinnitus was of recent onset and therefore not time locked to exposures to noise in the military. In October 2010, the RO requested a VA opinion on whether the Veteran's tinnitus was secondary to his service-connected hearing loss. An audiologist examined the Veteran's claims file, and opined that the tinnitus was less likely than not caused by or a result of the Veteran's service-connected hearing loss. The rationale given was that if it was secondary then it would have proceeded the hearing loss in onset or immediately following the onset of hearing loss, and that there was no scientific evidence of delayed onset of tinnitus many years after onset of hearing loss. The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignment during his period of active duty. In giving due consideration to the places, types, and circumstances of his service, noise exposure is acknowledged. 38 U.S.C.A. § 1154(a). The Veteran is also competent to identify and diagnose tinnitus, which is the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board also finds the Veteran's statements in his February 2010 claim concerning in-service noise exposure and tinnitus since service to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service as an aviation support mechanical equipment technician. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran). The Veteran's statements regarding in-service noise exposure have been conceded by VA. There is no competent evidence of record which would show that the Veteran does not suffer from tinnitus, and it has already been established that the Veteran is competent to identify and diagnose tinnitus. Moreover, the Board finds that, given the particular facts of this case, the Veteran is competent to report a history of recurrent tinnitus symptoms dating back to his active service. See 38 C.F.R. § 3.303(a) (2012); see also Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). Further, his assertions in this regard are deemed credible as they are consistent not only with the circumstances of his service, but also with the overall evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. at 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character"). In this regard, the Board is mindful of the apparent inconsistency between the Veteran's February 2010 claim of recurrent tinnitus, dating back to his active service, and his subsequent statements, set forth in the May 2010 and October 2010 VA examination reports, which suggest a more recent onset of symptoms. However, the Board finds that the totality of the evidence indicates that, by the Veteran's own account, his tinnitus arose in service. In making this determination, the Board relies on the United States Court of Appeals for the Federal Circuit's holding that lay evidence, in and of itself, can support a finding of direct nexus between an in-service injury and current disability. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009) (holding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus, conflicts with Jandreau). Conversely, with regard to the May 2010 VA examination, the Board finds that the probative value to be limited in light of the cumulative evidence of record. The May 2010 examiner did not address the Veterans assertions in his February 2010 claim (which was part of the claims file at that time) that he developed tinnitus while in service and that it has continued since then. The May 2010 examiner also failed to take into account the Veteran's in-service noise exposure (already conceded by VA). Despite concluding that tinnitus was as likely as not a symptom of his diagnosed hearing loss, the May 2010 examiner's negative nexus opinion was based solely on the Veteran's purported statement, at the time of the May 2010 examination, that his tinnitus had its onset 15+ years ago. Similarly, the October 2010 VA opinion, which addressed the theory of secondary entitlement, also failed to take into account the Veteran's statements in his February 2010 claim as well as his in-service noise exposure. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). For these reasons, the Board finds that the May 2010 and October 2010 VA opinions are of reduced probative value and that neither is dispositive in the instant case. Further, in light of the RO's previous decision to grant service connection for bilateral hearing loss, it is worth noting that 'an associated hearing loss is usually present' with tinnitus. See The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Additionally, 'high frequency tinnitus usually accompanies [noise-induced] hearing loss.' See The Merck Manual, Sec. 7, Ch. 85, Inner Ear. This medical treatise evidence is bolstered by the findings of the May 2010 VA examiner. Specifically, that examiner found that the tinnitus was as likely as not a symptom associated with the Veteran's service-connected hearing loss. The Board finds that this evidence provides a sufficient basis in this case on which to resolve reasonable doubt in favor of the Veteran. Considering all the evidence of record, the Board finds that the evidence is at least in equipoise in showing that the Veteran's tinnitus is related to events of his active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs