Citation Nr: 1330428 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-01 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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. Hager, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to March 1998. While on active duty he served as a helicopter pilot, and he reports service in Operation Just Cause and in Somalia. His service medical records are consistent in confirming assignments to special forces units, and he was awarded numerous decorations, including the Distinguished Flying Cross and the Armed Forces Expeditionary Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for tinnitus. FINDING OF FACT The Veteran has tinnitus that is related to in-service acoustic trauma. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). As the Board is, however, granting the only claim being decided herein, i.e., entitlement to service connection for tinnitus, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran was diagnosed with tinnitus years after service, and claims it is related to in-service acoustic trauma. The appellant's service records permit the undersigned to find that he served in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)). The Board therefore accepts the Veteran's testimony that he suffered acoustic trauma in service. Moreover, the fact that the claimed cause of the Veteran's tinnitus, i.e., acoustic trauma from helicopter and related noise, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. The Veteran has stated that he experienced tinnitus in service and since that time. On the March 2010 VA audiology examination, the examiner found it not likely that the Veteran's tinnitus was related to service for two reasons: (1) that there was no evidence of high frequency hearing loss at separation, and (2) that the Veteran reported the onset of tinnitus as only about the last three years. Each rationale is flawed. As the Veteran indicated in his October 2012 substantive appeal (VA Form 9), the examiner did not explain why a diagnosis of hearing loss at separation would preclude a finding of nexus between current tinnitus and service, and this rationale is particularly flawed in light of the general service connection principle that service connection is warranted for a disease first diagnosed after service when all of the evidence indicates it is related to service. This is a principle that the Court has applied in the hearing loss context. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss disability). Moreover, as the Veteran also wrote in his substantive appeal, he understood the VA examiner's question regarding onset of tinnitus to ask how long the problem had been interfering with normal conversations and hearing, and responded by indicating that the severity of his tinnitus had increased in the prior three years. The Board finds the Veteran's explanation of his statement to the VA examiner to be credible, as it is supported by his statement to a private audiologist in July 2010 that he had a 17 year history of tinnitus which had worsened recently. Statements made to health care providers during the course of treatment are particularly reliable. See Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). Here, there is a statement to a private provider that appears to conflict with a statement to a VA examiner, and the Veteran has offered a plausible explanation for the discrepancy. With reasonable doubt resolved in favor of the Veteran, the Board finds his statements to the private provider and during the course of the appeal that tinnitus had its onset during service to be credible. 38 U.S.C.A. § 5107. The Veteran is also competent to make this statement. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). As the March 2010 VA examiner's conclusion was based on inaccurate factual premises, her opinion is of no probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The Board is left with this combat Veteran's competent, credible statements indicating that he incurred tinnitus in service. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). This is one such case. As indicated in Reeves, the combat presumption may operate to establish that the Veteran incurred tinnitus while in service and the evidence in this case supports the Veteran's statements that he incurred his tinnitus in service. Although entitlement to service connection on a continuity of symptomatology basis under 38 C.F.R. § 3.303(b) is not warranted for tinnitus because it is not a chronic disease listed in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a), entitlement to service connection under 38 C.F.R. § 3.303(a) is warranted for the reasons stated above. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs