Citation Nr: 1332516 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-37 565 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to September 1968. He received the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the RO which denied service connection for tinnitus. The Veteran effectively withdrew his hearing request in November 2009. A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's lay assertions of having in-service exposure to hazardous noise levels are consistent with his duties during service and are credible for the purpose of establishing the presence of tinnitus beginning in service. 2. The currently demonstrated tinnitus is shown as likely as not to have had its clinical onset following the Veteran's combat-related exposure to harmful noise levels incident to his duties including in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of VA's duty to notify and assist him is not required at this time. Law & Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions in 38 C.F.R. § 3.307). Service connection 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). Furthermore, if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). TheVeteran contends that his current, constant bilateral tinnitus is directly related to the exposure to hazardous noise levels in service, particularly in combat as a forward observer directing artillery fire and as an infantryman in the Republic of Vietnam. The service treatment records showed that the Veteran endorsed a history of ear, nose, and throat trouble on his report of medical history at the time of separation. Otherwise, upon examinations, the Veteran's ears and drums were found to be normal at the time of enlistment and separation. During service, the Veteran did not complaint of, nor did he receive any treatment for any ear-related problem. The Veteran was afforded a VA audiological examination in October 2008 and complained of tinnitus due to military noise exposure. The examination report indicated that the claimed tinnitus was recurrent and only occurred at night when the Veteran was attempting to fall asleep on average of 50 percent of the time. The audiological testing was performed, and the VA examiner provided a negative opinion that the Veteran's current tinnitus was less likely as not caused by or a result of noise exposure during active duty as an infantryman. She also indicated that medical treatment for the condition was not indicated in the record. In statements made in connection with his claim in December 2008 and October 2009, the Veteran disagreed and contested the facts which the October 2008 VA examiner relied on in provided her negative nexus opinion. The Veteran clarified that his tinnitus should be characterized as constant (he did not recall saying that he only experienced it at night). He constantly heard a steady noise in his ears or head that was constant; he was just not aware of it when there was background noise or he was distracted. Furthermore, the Veteran contended that the examiner did not address the issue of his noise exposure in service in formulating her opinion. The Board recognizes that a medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board accords very little to no probative value to the October 2008 VA examiner's opinion. As a result, the Veteran was afforded another VA audiological examination in February 2013 and complained of current bilateral constant tinnitus since his tour in the Republic of Vietnam. The audiological testing was performed, and the examiner considered the Veteran's history of military noise exposure. In providing a negative nexus opinion, the examiner indicated that, upon review of the complete record, to include service treatment records, the Veteran's tinnitus was less likely than not caused by the Veteran's military noise exposure. The examiner noted in his rationale that the Veteran' hearing was within normal limits at the time of separation and also noted the Veteran's endorsement of having ear, nose, and throat trouble on the report of medical history at separation. Tinnitus is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) In his October 2009 statement accompanying his Substantive Appeal, the Veteran specifically asserted that he has been aware of a constant noise in his head ever since his first year in the Army. Significantly, the Veteran stated that he and his buddies experienced noise in the ears or head after firefights, as they would commonly have to sit next to a 50-caliber machine gun mounted on a personal carrier while two barrels melted down with hundreds of rounds fired (on numerous occasions). The Veteran is competent to describe symptoms of an injury or illness, such as ringing in his ears, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As such, it is within the scope of the Veteran's competency for him to describe the ringing in his ears, or tinnitus, during service and thereafter. He also is found to be credible in describing tinnitus since service, as would be consistent with the places, types, and circumstances of his service. See 38 U.S.C.A. § 1154. The Board finds the Veteran's assertion of experiencing manifestations of tinnitus following excessive, unprotected noise level in combat during service to be credible. The Board does not dispute that the Veteran had exposure to hazardous noise levels in service. The Veteran's descriptions of noise exposure are consistent with his military occupational specialty of serving as an artillery forward observer in numerous firefights in combat. Furthermore, VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154. The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. As such, given these current statements and the circumstances of service, the Board finds that the evidence to be in relative equipoise in showing as likely as not that the current tinnitus had its clinical onset following the Veteran's exposure to harmful noise level while serving in combat in the Republic of Vietnam. Considering the totality of the evidence, including the combat presumption under 38 U.S.C.A. § 1154(b) and Veteran's competent and credible assertions of having tinnitus since service, the Board finds that the evidence is at least in relative equipoise in showing that tinnitus had its clinical onset during service. In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1154(b), 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs