Citation Nr: 1332167 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-24 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, which denied service connection for tinnitus. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants 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, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal with respect to the service connection claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection the record must contain: (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). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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). The Veteran contends that he was exposed to significant noise during service and has experienced intermittent tinnitus. Service treatment records do not reveal any complaint, diagnosis, or treatment for tinnitus. The Veteran's Armed Forces of the United States Report of Transfer or Discharge (DD 214) reveals that the Veteran's specialty was that of a Light Weapons Infantryman. In its August 2012 Statement of the Case, the RO acknowledged the Veteran's statements of in-service acoustic trauma. In the Veteran's claim for VA compensation benefits received in February 2010, the Veteran stated that his tinnitus began while in service and he felt that his hearing loss was due to the noise exposure from firing an M-16 machine gun while serving as an infantryman. The Veteran also submitted a statement dated April 2011 in which he states he has had hearing problems since he served in the Army. He indicated that he would have clicking sounds intermittently and would have the volume louder than normal on the TV and radio. He stated he did not associate it with his time in service and lived with it all this time, until another Veteran informed him that it could be from his constant firing of M-16 and M-60 weapons and exposure to artillery fire. In his notice of disagreement (NOD) dated February 2012, the Veteran stated that he contends that his tinnitus is due to noise exposure while serving as a machine gunner during the military and not due to age. He stated that the ringing in his ears began before leaving service in 1966. VA treatment records from March 2011 show that the Veteran was seen for an audiometric evaluation. The Veteran reported having bilateral tinnitus. He was noted as having a history of periodic bilateral tinnitus and a history of artillery noise exposure in the Army for 3 years. In April 2011, the Veteran was afforded a VA audiological examination. The examiner noted that the Veteran reported that the condition started while in service, and that his current symptoms were hard of hearing and clicking in the ear. The Veteran also stated that his tinnitus just began in 1965 and that it is recurrent/intermittent. The Veteran stated that his duties while in the military consisted of infantry, and that he fired weapons with his right hand without any hearing protection. Post-service, the Veteran worked in real estate sales for 31 years and did not report any exposure to loud noise outside of military service. The Veteran was diagnosed with bilateral intermittent tinnitus. The examiner also noted that the etiology of tinnitus was as likely as not a symptom associated with the hearing loss. However, the examiner was of the opinion that tinnitus was less likely caused by or a result of military noise exposure. The reasoning given was that when the tiny hairs of the inner ear become damaged due to aging, it may result in the reduction and deterioration of audible range and tinnitus. The Veteran also submitted a private treatment record dated November 2012 from Dr. J., who noted that the Veteran complained of bilateral tinnitus, worse in the right ear since 1965 due to noise trauma while in the military. The assessment noted the Veteran with having tinnitus, subjective; and that the Veteran presented with bilateral tinnitus. The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignment during his period of active duty. In giving due consideration to the places, types, and circumstances of his service as a light weapons infantryman, noise exposure is acknowledged. 38 U.S.C.A. § 1154(a). The Veteran is also competent to identify and diagnose tinnitus, which is the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Accordingly, his reports of tinnitus constitute competent evidence of disability. The Board also finds the Veteran's statements in his February 2010 claim, April 2011 statement and February 2012 NOD concerning in-service noise exposure and tinnitus, to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service as an infantryman. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran). The Veteran's statements regarding in-service noise exposure have been conceded. There is no competent evidence of record which would show that the Veteran does not suffer from tinnitus, and it has already been established that the Veteran is competent to identify and diagnose tinnitus. Further, his assertions regarding its relationship to service are deemed credible as they are consistent not only with the circumstances of his service as an infantryman, but also with the overall evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Caluza v. Brown, 7 Vet. App. at 511 (1995). While the Veteran did not file a claim for service connection until March 2011, he explained in his April 2011 statement that he had not associated it with his service until another Veteran talked to him about it. The Veteran has consistently reported tinnitus throughout the entire period on appeal, and has consistently claimed that his tinnitus was due to his military service. The Board finds that the totality of the evidence indicates the Veteran's tinnitus arose in service. In making this determination, the Board relies on the United States Court of Appeals for the Federal Circuit's holding that lay evidence, in and of itself, can support a finding of direct nexus between an in-service injury and current disability. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009) (holding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus, conflicts with Jandreau). Conversely, with regard to the April 2011 VA examination, the Board finds that the probative value to be limited in light of the cumulative evidence of record. The April 2011 examiner's negative nexus opinion was based solely on the fact that the Veteran had normal hearing and a reference to when tiny hairs of the inner ear become damaged due to aging, it may result in tinnitus. However, while he did indicate that damage to tiny hairs of the inner ear could cause tinnitus, the examiner never indicated that the Veteran had damage to the hairs in his inner ear due to aging. Also, the examiner did not take in to consideration the Veteran's statements when rendering his opinion. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). For these reasons, the Board finds that the April 2011 VA opinion is of reduced probative value and is not dispositive in the instant case. Considering all the evidence of record, the Board finds that the evidence is at least in equipoise in showing that the Veteran's tinnitus is related to events of his active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs