Citation Nr: 1328291 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-08 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1966. This matter arises before the Board of Veterans' Appeals (Board or BVA) from a June 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in September 2012 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In February 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the hearing transcript has been uploaded to the Veteran's electronic Virtual VA folder and has been reviewed. FINDING OF FACT Tinnitus is reasonably shown to have had its origin during the Veteran's military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The VCAA applies in the instant case. However, the Board's grant of service connection for tinnitus herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran seeks service connection for tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. Tinnitus is not explicitly recognized as a chronic disease under 38 C.F.R. § 3.309(a). Thus, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran contends that he has tinnitus that is directly related to excessive noise exposure during service. Specifically, he asserts that he was exposed to extreme loud explosives and had no hearing protection. See VA Form 21- 4138, Statement in Support of Claim, received in January 2008. Furthermore, the Veteran testified to the onset of tinnitus since military service that has continued since then. However he did not seek treatment for it until 1999. See February 2013 Hearing Transcript. With regard to the Veteran's lay statements, the Board notes that competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence is evidence provided by a person who has personal knowledge (that is, that he/she actually observed; derived from his/her own senses) of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, he is competent to report that he has had problems with ringing in his ears since service. In addition, based on the evidence submitted and lay assertions provided in support of his claim, the Board finds the Veteran to be credible with respect to his assertions. In addition, the Board finds that there is little controversy as to whether the Veteran was exposed to noise trauma in service. His DD-214 lists his military occupational specialty (MOS) as field artillery crewman, a specialty identified as one with a high probability of noise exposure. See VBA Fast Letter 10-35 (September 2010). (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event.) Since the Veteran's account of his in-service noise exposure appears credible and consistent with the circumstances of his service, the Board concedes exposure to noise in service. See 38 U.S.C.A. § 1154(a) (West 2002). So, the question remains as to whether the Veteran's tinnitus is associated with his now conceded in-service noise exposure. Service treatment records are entirely negative for complaints or findings of tinnitus at any time during service. At service discharge in 1966, he was given the opportunity to identify any history or symptoms associated with the claimed in-service acoustic trauma, but did not indicate any pertinent complaints and none are documented. Likewise, there are no medical records immediately after the Veteran's service discharge that contain a diagnosis of tinnitus. In fact, the claims folder is devoid of any pertinent treatment records or other medical documents until a June 2008 VA examination report, almost 5 decades later. At that time, the Veteran was referred for examination for the specific purpose of obtaining an opinion as to whether or not his current tinnitus could be related to service. His chief complaint was tinnitus for the past 30 years and his noise history included exposure to weapons fire, heavy equipment, explosions, generators and communication headsets. As a civilian the Veteran was employed as an auto mechanic for 38 years. The examiner reviewed the service treatment records noting there was no diagnosis or complaint of tinnitus. She referred to the September 1966 separation physical wherein the Veteran checked "no" in response to whether he had any problems with his hearing. She then noted that the Veteran's report of onset of tinnitus was post military and that he had noise exposure subsequent to service. On that basis, the audiologist concluded that the Veteran's current tinnitus was not related to acoustic trauma from his military noise exposure. In determining whether service connection is warranted for disease or disability, VA must determine 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that there is inconsistent evidence as to whether the Veteran's tinnitus had its onset during military service. In this case, the Veteran's statements that his tinnitus began in service have been carefully considered. However as reported previously, service treatment records are entirely negative for complaints of tinnitus. At his VA examination in 2008, he reported that his tinnitus began 30 years prior, placing its onset in the late 1970s. The Veteran also testified that he first sought treatment for tinnitus in the late 1990s. In addition, the single medical opinion concluded that the tinnitus was not related to military service. On the other hand, of particular significance is the Veteran's conceded in-service noise exposure (as is confirmed by his duties as a field artillery crewman) as well as his competent description of tinnitus since service (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Also the Board notes that while the VA audiologist acknowledged the Veteran's 38 years of post- service occupational noise exposure as an auto mechanic, it is significant that she did not specifically rule that some degree of the Veteran's tinnitus could be due to his history of noise exposure. There are no medical opinions to the contrary. In this case, there is no adequate reason to reject the evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). In other words while tinnitus was not diagnosed until decades after service, the Board is satisfied that it cannot be clearly disassociated from the Veteran's conceded in-service exposure to loud noise. The supporting medical evidence in this case is far from unequivocal, however it has nevertheless placed the pertinent record in relative equipoise. For this reason, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs