Citation Nr: 1332640 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-00 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue of bilateral hearing loss is not on appeal because in the Veteran's June 2011 Notice of Disagreement (NOD) he did not identify bilateral hearing loss. Though the statement accepted as a VA-9 substitute mentioned both disabilities, it did so as part of the medical record, not as what the Veteran wished to appeal. Furthermore, the Statement of the Case (SOC), Supplemental SOC (SSOC) and VA Form 646 only address tinnitus. At no point does the Veteran attempt to appeal the denial of reopening for bilateral hearing loss and therefore that issue is outside the Board's jurisdiction. The Veteran requested a hearing before his regional hearing officer. This hearing took place April 2012, at the Muskogee, Oklahoma VA. The transcript of the hearing is of record. FINDING OF FACT The Veteran has been shown to currently have tinnitus that is as likely as not related to his military service. CONCLUSION OF LAW The requirements for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Merits of the Claim The Veteran seeks service connection for tinnitus. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the evidence is in equipoise, and therefore the criteria for entitlement to service connection for tinnitus have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a disability resulting from that injury. 38 C.F.R. § 3.303. As detailed below, the Veteran has a current disability of tinnitus. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C.A. § 7104(a). In addition, the Board must consider all information and lay medical evidence. 38 U.S.C.A. § 5107(b). In doing so, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's statements, VA examination and private medical records. The Veteran has a current disability, tinnitus. The Veteran was diagnosed with tinnitus in his October 2011 VA examination. The Veteran is also competent to testify as to his tinnitus, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. The Veteran's service treatment records do not reflect any complaints, treatment or diagnoses of tinnitus. In fact, a hearing disability is not mentioned until the June 1998 filing for bilateral hearing loss. However, the Veteran stated that he had been experiencing ringing in his ears since his time in service. Because of the statements and facts discussed below, the Board finds this assertion credible. The Veteran has presented testimony and statements alleging exposure to noise. These attest to his experiences in service and his tinnitus. In a June 2010 statement, the Veteran explained the stress of being a radioman. He stated that there were loud signals that he had to sort through, interrupted by louder bursts of static. He also stated he had a constant loud high pitched ringing in his head "throughout the years." The Veteran attached a statement to his June 2011 NOD. In it, he described the loud bursts of static he heard in service. The Veteran provided another statement in May 2013, stating that while he was performing his duties, lightning struck the antenna of a close ship with a louder signal, causing loud noise to come over the radio to which he was listening. He also stated that many times a day he strikes the side of his head with his palms in hopes of stopping his tinnitus. At the April 2012 hearing, the Veteran stated that his tinnitus had begun in service and that it was intermittent. He also stated that he uses a fan at night to cope with his tinnitus. He noted that while he was not getting medical treatment for his tinnitus, he was trying remedies he had found in magazines and elsewhere. Additionally, he stated in his that the tinnitus began as intermittent, though now his written statements and examinations describe it as constant. The Veteran is competent to describe what he experienced, as well as the symptoms of his tinnitus. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds the Veteran's statement regarding his service and duties credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Although there is no other evidence of complaints of tinnitus during the Veteran's service, nor a specific event that might trigger it, the Veteran's statement statements match his Military Occupational Specialty as a radioman, as listed on his Form DD-214. Therefore, the Board concedes that the Veteran had noise exposure in service. The final element is competent evidence of a nexus between the current tinnitus and the noise exposure during service. In the instant case, we have two conflicting medical opinions. The VA examination concludes that the Veteran's tinnitus is less likely than not related to his service, while the private audiologist concludes the Veteran's tinnitus is as likely as not related to his service. Both opinions are competent and credible, and for the reasons below, the Board finds them to be in equipoise. The October 2011 VA examination is thorough and provides a rationale for its negative etiological conclusion. During the examination the Veteran explained that he was exposed to noise in service from his work as a radioman. He reported noise exposure from the static from the radio as well as the radio broadcasts themselves. He denied any other noise exposure during service. After service, the Veteran worked as a carpenter, in a rock crusher plant and in an oil field. He denied any recreational noise exposure. He also noted right ear trauma from an automobile accident. The Veteran stated that he believes the tinnitus is from his duties as a radioman and that he first noted it shortly before discharge. The tinnitus is constant. The examiner noted that the Veteran's tinnitus was likely as not a symptom associated with the Veteran's hearing loss. After reviewing the claims file and examining the Veteran, the examiner noted that there were no complaints of tinnitus while in service and that the Veteran suffered head injuries and ear trauma from an auto accident in 1980, 8 years after discharge from service. There were no complaints of any hearing disability until June of 1998, when the Veteran made his original hearing loss claim. The examiner concluded that it was not likely the tinnitus was a result of, contributed to or aggravated by the Veteran's service. His rationale was that tinnitus has an immediate onset, and is not delayed. The examiner's rationale is supported by applicable case law. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the examiner did not address the Veteran's report that the tinnitus started in service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Therefore, there is evidence in the record that the Veteran's tinnitus is not related to his service, though the exam may be inadequate. The Veteran provided a December 2011 letter from a private audiologist, M.W. The audiologist indicated that the Veteran reported constant bilateral tinnitus. M.W. reported that the Veteran stated he was exposed to noise from 3" guns, M-14 rifles, radio signals, headsets, radio squelch, high pitch static, Morse code, engines and other ship noise. M.W. noted that the Veteran worked as a carpenter for 10 years with ear protection and as a general laborer for 10 years without the need for ear protection. He also stated the Veteran has no exposure to excessive recreational noise. The audiologist opined that the Veteran's tinnitus was at least as likely as not related to his military service. M.W.'s rationale was that exposure to excessive noise from guns, rifles, radio signals, headsets, radio squelch, high pitch static, Morse code, engines and other ship noise results in acoustic trauma and tinnitus. The private examiner's rationale implies that because of the Veteran was exposed to the listed noise in service, his tinnitus is at least as likely related to his service. While the review of the Veteran's post-service noise exposure does not specifically include the Veteran's work in the rock crusher plant or the oil fields, it does mention his time as a general laborer without need for noise protection. Therefore, the Board finds there is also evidence in the record that the Veteran's tinnitus is related to his service. "Competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Here, there is competent evidence of a nexus in the form of the private audiologist's letter. As noted above, in certain cases, competent lay evidence may satisfy any of the required elements. "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the 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). The Veteran has given competent evidence regarding his tinnitus, the credibility of which is supported by his Military Occupational Specialty. The nexus drawn by the private audiologist and the lack of such a nexus from the VA examiner are in conflict. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is evidence that tends to show that the Veteran's tinnitus is not service-connected, such as the VA examination, there is also evidence that shows there is a nexus between tinnitus and his service, such as the private audiologist's and the Veteran's statements. The Board is of the opinion that this point of equipoise has been reached in the instant case. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not the Veteran's tinnitus is service-connected. Id. Accordingly, service connection for a tinnitus is granted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs