Citation Nr: 1329868 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-32 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: North Dakota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to August 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT There is competent and credible evidence that the Veteran was exposed to loud noise in service and, resolving all reasonable doubt in the Veteran's favor, the Veteran's current tinnitus had its onset from an injury, disease, or event of active service origin. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. As the claim for service connection for tinnitus is resolved in the Veteran's favor, further discussion here of compliance with the VCAA with regard to those claims are not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus is not listed as a disease under § 3.309 as a chronic disease. 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). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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). Facts The service treatment records indicate the Veteran's hearing was tested at entrance by the whispered voice test and his hearing was normal. At separation from service in July 1960, the audiometric test results show the Veteran's hearing was normal. At the separation examination, he reported that his hearing was normal and he did not have any ear, nose, or throat trouble. The Board notes that both examinations and all of the Veteran's records were fire damaged and portions of each document cannot be read. The audiometric testing and history, as noted, are legible. The Veteran testified that he started out as a cartographer and later evaluated radar equipment in Alaska. His work station was located next to the runway and aircraft of all types (fighter, bomber, tanker, and transport) would constantly take off and land. The aircraft often taxied outside his building creating a loud high pitch sound. The Veteran travelled to remote radar sites by helicopters and light aircraft with no hearing protection. He noted a small amount of ringing in his ears. He thought this symptom was normal until years later a physician asked if he had tinnitus and she explained that it meant ringing in his ears. After service, the Veteran worked as an electrician and as a farmer. He was not exposed to noise as an electrician. While he used big equipment as a farmer, he sat inside an enclosed cabin. His only other noise exposure after service came from hunting and chainsaws but he used hearing protection. In January 1994, the Veteran started seeing Dr. K. Sumra, who recorded that the Veteran had tinnitus. In April 2006, the Veteran sought treatment from VAMC and the treatment note states that he did not have tinnitus. This was repeated in the October 2006 and April 2007 VAMC treatment notes, which are the only VAMC notes of record. In March 2010, the Veteran had his hearing tested by a private audiologist, K. Fire. The Veteran reported a severe decease in high frequency sounds which he attributed to service. The Veteran was exposed to high intensity aircraft engines and, subsequent to the noise exposure, the Veteran noted declining auditory sensitivity and an increase in tinnitus. After service, the Veteran used hearing protection with noise exposure or sat in a closed cabin in his farm equipment. The audiologist concluded that the Veteran was not exposed to high noise levels after service. Currently, he had no other symptoms such as pain, drainage, known infection, or vertigo. The diagnosis was moderate-severe sensorineural hearing loss. The Veteran had a mild loss of speech recognition. The pattern was characteristic of exposure to high levels of background noise. Because the Veteran had a decrease in hearing coexisting with service noise exposure, a pattern characteristic of noise exposure, and the test results supported hearing loss caused by noise exposure, the audiologist concluded the Veteran's hearing loss more likely than not resulted from service. No mention was made of tinnitus. In a follow-up report dated in April 2010, the private audiologist reported the Veteran had tinnitus in both ears. He stated that the Veteran had normal hearing at both the entrance and the separation examination. He cited medical literature that has concluded there is little evidence available to determine whether noise induced hearing loss or tinnitus progresses after noise exposure ends or whether noise induced hearing loss can develop months or years after the exposure ended. In a VA examination in July 2010, the Veteran complained that hearing loss and tinnitus made it difficult to hear in crowds, groups, or with background noise. He reported noise exposure from aircraft in service and hearing protection since separation. Furthermore, the Veteran reported the post- service onset of tinnitus between 1960 and 1970. The examiner also noted that the Veteran did not have tinnitus according to the VAMC treatment notes. The examiner diagnosed sensorineural hearing loss and stated that tinnitus can be associated with that diagnosis. The expert, however, concluded that it was less likely than not that the Veteran hearing loss was related to military service. Since the Veteran denied tinnitus in the VAMC records, the examiner could not reach an opinion whether there was a relationship of tinnitus to service without speculation. In a letter dated in May 2011, a private physician, Dr. J. Johnson, who appears to be the Veteran's current primary care provider, stated he has seen the Veteran over the last several years and the history of the Veteran for hearing loss and tinnitus was more likely than not the result of high pitch aircraft while in service. Also in a letter dated in May 2011, Dr. K. Sumra reported knowing the Veteran for thirty years and he had tinnitus "in those days." Although it is not clear, it appears that Dr. Sumra accidently left out some words and may have been trying to say that the Veteran has had tinnitus since Dr. Sumra started treating the Veteran. When his clinic moved, his earlier records were destroyed. Dr. Sumra believed the tinnitus was due to service, particularly loud aircraft noise. He noted the Veteran had well controlled high blood pressure on medications that would not be responsible for the tinnitus. In October 2011, VA obtained a second opinion from a VA expert who noted that after service, the Veteran was exposed to noise from farm machinery, hunting, and chainsaw. The evidence indicated tinnitus had its onset somewhere between 1960 and 1970. While tinnitus is a known side effect of hearing loss, the two can be completely separate. Furthermore, the second VA examiner cited a medical article that concluded tinnitus can be a side effect of high blood pressure medication, but the expert, an audiologist, would defer to a physician. Noting the normal hearing at separation, the start of tinnitus between 1960 and 1970, plus the post-service noise exposure, the expert concluded it would be mere speculation to conclude tinnitus resulted from noise exposure in service. The Veteran testified that when the physician asked him in April 2006 if he had tinnitus, he answered yes and the physician either did not hear his answer or made a mistake by recording that the Veteran did not complain of tinnitus. In addition, as to the subsequent notes, the Veteran did not recall if he was asked if he had tinnitus and Veteran's service representative argued that the subsequent notations were repeated or copied from the erroneous April 2006 outpatient note. Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the Veteran, the Board finds that the claim of service connection for tinnitus must be granted. Tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent- "ringing in the ears is capable of lay observation"). See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Board finds that the Veteran is competent to describe ringing in his ears and his testimony is credible that he has tinnitus. Thus, the evidence establishes that the Veteran currently has tinnitus. The remaining question is whether service connection may be granted when the disability is first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disabilities were incurred in service. 38 C.F.R. § 3.303(d). The Board recognizes that the Veteran did not report tinnitus at his separation examination. He was only asked whether he had a hearing loss, which was answered in the negative, and whether he had ear, nose, and throat trouble. Resolving all doubt in favor of the Veteran, the Board finds the Veteran may have understood the question as limited to injuries or illnesses such as infections that involved the ear, if not all three body parts (ear, nose, and throat), and not meant to cover a symptom such as tinnitus. The Veteran testified that he did not know what tinnitus meant and that he thought his symptom ringing in the ears was normal until Dr. Sumra told him years later what tinnitus meant. As to the VAMC notes in 2006 and 2007, the Veteran testified that he told the VAMC health care provider that he had tinnitus but the provider did not understand the Veteran or made an erroneous entry. As demonstrated above, on all other occasions both before and after, he has reported tinnitus symptoms such as ringing in the ears. Further, the Board finds the Veteran credible as to onset began in service. He testified he first noticed it at a low intensity in service and the medical history records the Veteran noticing the onset somewhere between 1960 and 1970. As the Veteran separated from service in 1960, and accepting the earliest date that the Veteran recalled, that history of the onset of tinnitus is consistent with his testimony. Accordingly, the Board finds that the Veteran is credible that the VA provider made a mistake when recording the Veteran's history and that overall his statements and testimony are credible. The Board also finds it plausible that the mistake was repeated without an actual conversation about tinnitus in the subsequent VAMC visits. The statements and testimony tend to prove a fact, that is, he noticed that tinnitus began in service. Moreover, the Board finds the Veteran's report of having experienced tinnitus since separation from service to also be credible. The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure), resulting in tinnitus. While service treatment records reflect no direct reports of tinnitus or ringing in the ears, there also is no indication in these records, or any post-service treatment records, that the Veteran ever directly denied tinnitus or a history of tinnitus. The only apparent history of tinnitus inconsistent with his written statements and testimony is the VAMC outpatient notes, but as noted, the Board has determined that inconsistency resulted from a misunderstanding or mistake. As the Veteran's lay statement is competent and credible with regard to noise exposure in service and in describing tinnitus in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and noise exposure in service, all the elements of service connection have been met and service connection is established. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."; see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). The Board acknowledges that the VA examiners in July 2010 and October 2011 could not reach an opinion based upon the denial of tinnitus in the VAMC notes, and the lack of any documentation in the service treatment records. On the other hand, Drs. Sumra and Johnson concluded that the Veteran's tinnitus resulted from service. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301 (2008). To the extent that the VA examiners relied on the absence of medical evidence in service to corroborate tinnitus during a period of active duty, under the circumstances of the case, this reliance has minimal probative value as the Board finds that the Veteran is competent and credible to describe tinnitus during active duty and since service. Further, as to relying upon the VAMC notes, the Board has found those notes contain a mistake. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); See also Mariano v. Principi, 17 Vet. App. 305, 317 (2003) (Observing that flawed methodology in creating medical report renders physician's opinion of "questionable probative value"). Further, at least to the October 2011 examination, the VA examiner also relied upon post- service noise exposure that is inaccurate. The Veteran testified that he had protection when engaged in activities with noise exposure, e.g., sitting inside an enclosed cabin when operating farm equipment. The October 2011 VA examiner also postulated that the Veteran's high blood pressure medication could have caused the tinnitus but deferred to a physician. The Veteran's treating physician concluded that the medication the Veteran used to alleviate the high blood pressure did not play a role in his tinnitus. Furthermore, although there is no indication Dr. Sumra and Dr. Johnson reviewed the Veteran's file and therefore reviewed all of the medical evidence available, the indicates the private physicians took into consideration the Veteran's reports of noise exposure during and after active duty and his reports of symptoms following service. Therefore, the Board finds the opinions have probative value with respect to a nexus between the Veteran's tinnitus and his in-service noise exposure. Therefore, the evidence proves a relationship between service and the current tinnitus, that is, the statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure) that resulted in the Veteran's current tinnitus. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus began in service, and the claim for service connection for tinnitus must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs