Citation Nr: 1328132 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-25 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1957 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In that decision, the RO denied entitlement to service connection for tinnitus. The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for bilateral hearing loss. In August 2009, the RO granted service connection for that disability, and thereby resolved the appeal as to that issue. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus is related to service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. §§ 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 of 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). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")). Service connection may also be granted for a disease first diagnosed after discharge 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). 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 v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a July 2009 examination report from Amy Byrd, ARNP and John Randall Resser, MD, FACS, FAAOA includes a diagnosis of tinnitus. Thus, current tinnitus has been demonstrated. The Veteran contends that his current tinnitus is related to exposure to loud noises in service associated with military aircraft. Specifically, he has reported that he served as a reciprocating engine mechanic on various aircraft and that he was exposed to the loud noises associated with the aircraft without the use of hearing protection. As a result, he began to experience tinnitus in service. He has also reported pre-service noise exposure associated with farming equipment and recreational hunting involving firearms, as well as post-service occupational noise exposure at a tire manufacturing plant with the use of earplugs. The Veteran's service treatment records are unavailable and are presumed to have been destroyed in a fire at the National Personnel Records Center in 1973. His DD 214 and service personnel records reflect that his military occupational specialty was a reciprocating engine mechanic, that he was authorized to start and runup aircraft engines, and that he received an Aircraft Taxi and Engine Operation Certificate. Also, statements dated in August 2008 from service members who had served with the Veteran (VA Form 21-4138) indicate that he was assigned to the engine conditioning shop where he was responsible for maintaining aircraft engines. Such duties required that the engines be run and this resulted in an extremely loud working environment. The Veteran is competent to report in-service noise exposure and tinnitus. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Moreover, there is nothing to explicitly contradict his reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, his reports of in-service noise exposure and tinnitus are credible and in-service acoustic trauma and tinnitus is conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The audiologist who conducted a February 2007 VA examination opined that she was unable to determine the etiology of the Veteran's tinnitus without resorting to mere speculation. She explained that the claims file did not contain any service treatment records, but that the Veteran's DD 214 did document his military occupational specialty as a reciprocating engine mechanic. However, he also reported a post-service history of occupational noise exposure at a tire manufacturing plant for 32 years with significant noise exposure and required use of earplugs and routine hearing tests provided by the employer. A private treatment record dated in September 2006 indicated a gradual decreased hearing for several years with only a slight concern of bilateral tinnitus following noise exposure. Moreover, the Veteran was unable to identify the specifics regarding the dates or incidents of onset of his tinnitus. A second VA audiologic examination was conducted in August 2008 by the same examiner who had conducted the February 2007 VA examination. She explained that the Veteran was not reporting tinnitus at the time of the August 2008 examination (although it was a complaint prior to his receipt of hearing aids), but that it continued to be her opinion that it was not possible to determine the probable etiology of the Veteran's tinnitus without resorting to mere speculation. A July 2009 audiologic examination report from Purchase ENT includes an opinion that the Veteran's tinnitus was related, in part, to his military service. This opinion was based on the fact that he was exposed to "flight line noise" in service. In a September 2009 letter, Tony Milliano, Au.D., FAAA opined that it was "certainly more probable than not" that the Veteran's tinnitus was substantially influenced by the high level noise exposure in service. He reasoned that there was no other identifiable etiology suspected to be related to the Veteran's tinnitus. It was well documented in the audiologic research that tinnitus as a result of continued exposure to high intensity noise is of gradual onset and unless there is a single event causing the symptoms, the gradual progressive nature of the disease process is very typical for noise induced hearing loss. It was well documented that individuals often delay pursuing audiologic services for the period between 5 and 10 years. Without a single incident causing the Veteran's symptoms, it was impossible to attach a specific link to the tinnitus "in the causing event." The symptoms which were present were certainly of a progressive and gradual onset related to the high-level noise exposure. The February 2007 and August 2008 opinions are adequate to the extent that they are accompanied by specific rationales addressing why a definitive conclusion as to whether the Veteran's tinnitus was related to service could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that opinions could not be provided without resort to speculation and these statements weigh neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The July and September 2009 opinions, however, were based upon a review of the Veteran's reported history and are accompanied by specific rationales that are not inconsistent with the evidence of record. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Tinnitus was not exhibited in service or for many years thereafter; acoustic trauma was experienced in service and for many years after service in the Veteran's post service employment. However, in light of the July and September 2009 opinions and resolving reasonable doubt in his favor, the Board finds a basis for granting service connection for tinnitus. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs