Citation Nr: 1329265 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-33 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active military service from September 1977 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, that denied service connection for tinnitus. FINDING OF FACT The weight of the evidence shows that the Veteran's tinnitus had its onset during his active military service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Service connection for tinnitus is awarded herein. This constitutes a full grant of the benefit sought on appeal. Any errors committed regarding the duty to notify or the duty to assist accordingly were harmless and will not be discussed. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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)). The Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Therefore, an assessment of the probative value of the lay (non medical) evidence in addition to the medical evidence must be undertaken. All evidence indeed may be discounted "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Lay evidence may be sufficient by itself to support a claim of service connection. Barr v. Nicholson, 21 Vet. App. 307 (2007). This is the case where the evidence is both competent and credible. Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. Factors for consideration in weighing the credibility of a lay person include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. The benefit of the doubt is given to the Veteran when there is an "approximate balance" of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Veteran prevails when the preponderance of the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Merits of the Claim The Veteran presently has a tinnitus disability. The July 2012 VA examiner specifically diagnosed the Veteran as having tinnitus. In any event, the Veteran would be competent, even as a layman, to proclaim that he experiences tinnitus; this condition, by its very nature, is inherently subjective and, therefore, capable of even his lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation"). As for the second requirement for service connection, that of a disease or injury was incurred or aggravated during service, a review of the Veteran's service treatment records is unremarkable for treatment or diagnosis of any tinnitus. However, service treatment records indicate the Veteran had a history of ear and hearing related problems. A May 1981 report also shows high frequency hearing loss. Two 1985 treatment records (March and August) reference high frequency hearing loss and the recommendation "to wear protection while exposed to hazardous noise." In terms of in-service noise exposure, the Veteran's military occupational specialty was security policeman, which he says involved serving on a flight line and exposure to fighter jet engine noise. He also says he had noise exposure from rifle range noise at the Police Combat School. There is no competent medical nexus evidence that supports the possibility of an etiological link from his current tinnitus to service, particularly as due to his in-service acoustic trauma. Instead, the examiner conducting the July 2012 VA examination opined that the Veteran's current tinnitus disability is less likely as not due to his in- service noise exposure. The rationale for the negative opinion was that the Veteran had been unable to provide a ballpark range as to how long he had been experiencing tinnitus, and that tinnitus is not caused by hearing loss. However, despite the negative February 2012 opinion, it is facially plausible that the Veteran experienced tinnitus during service and that tinnitus persisted thereafter. In an October 2012 statement, he recalled that as a trainee, his ear plugs would become lose and fall out and that it was at this time that ringing the ears began. He is again deemed to be competent self-diagnose tinnitus. See Charles. The Veteran also notes exposure to aircraft noise and that to hear radio messages; he was encouraged to not wear ear plugs. He readily acknowledges that he did not complain tinnitus in service or for many years later. Nevertheless, he reasonably explains that he did not realize that tinnitus was a disability and that he was told not to pursue a claim earlier. Put another way, the outcome of this decision hinges heavily on whether the Veteran's assertion of experiencing tinnitus in service and since that time is deemed credible. In this regard, the Board finds the Veteran's statements to be credible as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498 (1995). Reference is again made to the service treatment records that reference repeated noise exposure as well as in-service documented sensorineural hearing loss. Such tends to support the Veteran's claim of having problems with his hearing and ears in service. The Veteran's statements when coupled with the findings in the service treatment records have rendered the balance of evidence at to at least an equipoise level. Service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs