Citation Nr: 1329870 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-01 857 ) 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 J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from September 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's tinnitus manifested as a result of his active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA VA has a duty to notify and assist veterans 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 and 3.326(a). In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. II. Legal Criteria The Veteran asserts that he was exposed to noise during service and experienced ringing in his ears that started in service which remains present today. In an Informal Hearing Presentation (IHP) submitted by the Veteran's representative, it was argued that the Veteran is competent to give lay testimony regarding his disability, and service connection should be granted based on his lay statements. 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a direct basis may 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). See also Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that a Veteran can establish their claim of hearing loss disability after separation from service). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it 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). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide a diagnosis of a simple condition such as tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. Tinnitus is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996); See also Kelly v. Brown, 7 Vet. App. 471, 472 (1995). III. Analysis 1. Current Disability The Veteran has a disability, in the form of bi-lateral tinnitus. When examined by VA in July 2010, the Veteran made a current complaint of tinnitus which was confirmed by the examiner, and the Veteran stated that he had ringing in his ears since 1970 when he was exposed to 155 mm artillery battery. The Veteran additionally stated that his tinnitus was constant and that his tinnitus is louder in his right ear, than his left ear. The Veteran is competent to provide a diagnosis of a simple condition such as tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). Since tinnitus is a subjective condition, the Veteran is also found to be credible regarding his description of his tinnitus. The Veteran has given no reason for the Board to doubt his credibility or the evidence of record. Therefore, the Veteran fulfills the current disability element for service connection. 2. In-Service Injury The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. The Veteran stated in his July 2010 VA exam, and in his IHP received December 2012, that he was exposed to 155mm artillery in service. The Veteran's assertions are consistent with his military occupation as a Motor Transport Operator and a Pershing Operating Sergeant. The Veteran is competent to discuss his experiences, and exposure to noise, as well his symptomatology of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, competent lay testimony "can be rejected only if found to be mistaken or otherwise deemed not credible." McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The record contains no reason to find the Veteran not credible. 3. Nexus In the instant appeal, there is conflicting evidence on the issue of nexus. Specifically, the Veteran contends that his in-service acoustic trauma is the nexus for his tinnitus, and that his tinnitus has existed since service. The Veteran has specifically supported his claim stating in his Notice of Disagreement (NOD), received in August 2010 that he was exposed to noise during service and has had continued symptomatology since service. The Veteran's IHP received, December 2012 specifies that the Veteran's noise trauma came from his exposure to 155mm artillery. The VA exam from July 2010 contains evidence that the Veteran currently suffers from tinnitus and has had tinnitus since 1970. The Veteran stated that his right ear typically is worse than his left ear. On the other hand, a VA audiologist submitted a negative nexus opinion stating that "this examiner cannot be 50% or more certain that tinnitus was caused by acoustic trauma during military service." The VA audiologist found the Veteran "vague when asked to currently describe his tinnitus" and that the Veteran was unsure if the tinnitus remained constant after his initial trauma. The medical opinion is of little probative weight because in calling the Veteran "vague" the examiner ignores the fact that Veteran was able to specify his symptoms, and discuss the differences between his left and right ear. Considering the circumstances of the Veteran's service, he was likely exposed to noise exposure in service. In addition, the Veteran is competent to assert the occurrence of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also 38 U.S.C.A. § 1154(a). Therefore, the Board finds that the Veteran's statements in his NOD, VA exam, and IHP are competent and credible with respect to having been exposed to noise in the military, and having ringing in his ears in service which continued after service. The Veteran was able to specify when and what caused his acoustic trauma and was able to discuss his symptoms, specifying the difference in disability, between his left and right ear. The Veteran is found credible, and the Board accepts the Veteran's assertions of in-service noise exposure. In weighing the evidence, the Board finds that the Veteran's statements and lay evidence is more probative than the VA examiner's opinion. The Veteran has submitted lay statements that he currently suffers from tinnitus, has had tinnitus since service, and was exposed to acoustic trauma in the form of 155mm artillery, fulfilling the nexus element. The Board finds the medical examiner's classification of the Veteran's lay statements as "vague" is unsubstantiated, as the Veteran was sufficiently detailed in describing his tinnitus at the July 2010 VA exam. Therefore the Veteran's lay statements hold more weight than the VA medical opinion. The Veteran's current disability of tinnitus, with its onset in service, and the causal relationship between the Veteran's current tinnitus and in-service complaints of tinnitus, warrants service connection. Furthermore, since tinnitus is wholly observable by a lay person, and the Board has found the Veteran credible, the requirement of medical nexus is obviated. See Jandreau at 1376-77. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs