Citation Nr: 1330203 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-06 138 ) 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 October 1980 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran seeks service connection for tinnitus. 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. The issue of new and material evidence to reopen the Veteran's claim of service connection for hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the Veteran's Form 9 received in March 2012 asserts his disagreement with the RO's denial of service connection for hearing loss and should be interpreted as a claim to reopen. The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits pursuant to the Veterans Claims Assistance Act (VCAA). 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 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 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 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. 1. Current Disability The Veteran has a current disability, in the form of tinnitus. When examined by VA, in November 2010, the Veteran stated that he had tinnitus on and off during the day, he first noticed his tinnitus while in service, and has had tinnitus since service. 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 at his November 2010 VA Audio exam that his noise exposure came from time spent in the motor pool. The Veteran's assertions are consistent with his military occupation as a Motor Transport Operator. The Veteran states in both his Notice of Disagreement (NOD) received in December 2010, and in the IHP submitted in January 2013, that he reported his tinnitus to unit medics and he was told that there was nothing that could be done about it. Furthermore, there is evidence of subjective complaints of ears, nose and throat (ENT) problems while in service. A May 1983, service treatment record (STR) shows that the Veteran made a complaint regarding his ENT. The Veteran is competent to discuss his experiences, and exposure to noise, as well as his symptomatology of tinnitus. Furthermore, the Veteran has consistently maintained that he reported his tinnitus while in service. The Veteran is found credible, as the documented evidence from May 1983, corroborates the Veteran's claims of having tinnitus while in service. The Veteran fulfills the in-service injury element for tinnitus. 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's Statement in Support of Claim received in August 2010 stated that the Veteran was a heavy equipment operator, was exposed to acoustic trauma, and has had tinnitus since his exposure to acoustic trauma while in service. The Veteran at his VA audio exam in November 2010 stated that he first noticed his tinnitus and the ringing in his ears while in service; the motor pool was where he was exposed to acoustic trauma while in service. On the other hand, a VA audiologist submitted a negative nexus opinion based on his examination of the Veteran in November 2010. The VA audiologist found that because there were no prior complaints of tinnitus in the Veteran's records, and that he denied ear trouble upon separation, the examiner concluded that the Veteran's tinnitus is not as least as likely as not related to his military service. 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 an 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 is found to be credible, based on the combination of evidence from his STR in 1983, and the fact that the Veteran has been consistent in that he has had tinnitus since and during his active service. Thus, there is competent and credible evidence to support the Veteran's claim of acoustic trauma in service. The Board acknowledges the November 2010 negative nexus opinion concerning the etiology of the Veteran's tinnitus; however, the Board notes that in rendering this opinion, the VA examiner failed to acknowledge the Veteran's lay statements. Additionally, the examiner appears to use the lack of prior complaints and the denial of ear problems at separation as the rationale for the negative opinion. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is additionally inadequate if it does not take into account the Veteran's reports of symptoms and history. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, because the November 2010 opinion does not contemplate the Veteran's lay reports of tinnitus in service, the Board finds this opinion to be of little probative value. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). 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 May 1983 complaint of ENT, combined with the Veteran's claim that he did in fact report his condition to medics, but was "brushed off", is persuasive evidence that the Veteran's tinnitus started in service. The Veteran has additionally submitted lay statements that he currently suffers from tinnitus, and has had tinnitus since service, fulfilling the nexus element. The Board finds the Veteran's lay statements more probative, then the Dalton opinion submitted by the VA examiner. 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 Service connection for tinnitus is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs