Citation Nr: 1332695	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  13-16 139	)	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. W. Loeb


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1966 to August 1968; his military occupational specialty was engineer supply parts specialist.  
This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 


FINDINGS OF FACT

1.  The Veteran was exposed to acoustic trauma in service.  

2.  The Veteran has experienced tinnitus consistently since service.

3.  The evidence is in equipoise as to whether the Veteran has recurrent tinnitus due to service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for tinnitus are met.  38 U.S.C.A. §§ 1154, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks service connection for tinnitus.  He contends that exposure to acoustic trauma in service resulted in chronic tinnitus that began in service.  

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim for service connection for tinnitus will be granted on this basis.  38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means 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).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).
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).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding 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"). 

The Board now turns to the merits of the Veteran's claim.

The evidence of record reveals that the Veteran served as an equipment supply parts specialist attached to an infantry unit.  

Although the Veteran's complained of running ears in April 1966, his service treatment records do not reveal any complaints of ringing in the ears.  Additionally, his service treatment records do not demonstrate that at any time during his period of service, his hearing met VA's criteria for consideration as a disability.  See 38 C.F.R. § 3.385 (2013).  

On VA examination of the ears in April 2012, the Veteran reported noise exposure as a combat engineer in service; he complained of current tinnitus and said that his ears began to ring and hurt beginning in June 1967.  He described his tinnitus as his heartbeat pulsating constantly in his ears.   

Audiometric examination in April 2012 demonstrated a mild sloping to moderately-severe mixed hearing loss in the right ear and an asymmetrically worse moderate sloping to profound mixed hearing loss in the left ear.  The examiner concluded that the hearing test results were invalid because of poor reliability and that the Veteran's tinnitus was at least as likely as not associated with his hearing loss.  

According to a May 2013 VA opinion, it was less likely as not that the Veteran's claimed tinnitus is secondary to service because the hearing test results were not valid for rating purposes due to poor reliability based on false positives.

There is evidence both for and against the claim for service connection for tinnitus.  Although the VA opinion in May 2013 did not find that the Veteran's tinnitus is due to service, the evidence shows that the Veteran was a supply parts specialist attached to an infantry unit, which means that noise exposure would be consistent with the circumstances of his military service.  

As to whether the evidence is sufficient to demonstrate that the Veteran has had tinnitus since active service, the Court of Appeals for Veterans Claims (Court) has specifically held that a veteran is competent to testify that he experienced an audible sound in his ears in service and had experienced this sound in his ears ever since service.  See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).  Additionally, as noted above, the Federal Circuit has held that a layperson, such as the Veteran, is competent to provide a medical nexus when he or she is competent to both diagnose a disability, and report continuity of symptomatology associated with that disability since the onset of the disability.  See Davidson, 581 F.3d at 1316.

Consequently, the evidence is in relative equipoise.  By extending the benefit of the doubt to the Veteran, as required by law, the Board finds that service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  Because this issue is being granted in full on appeal, no further notice or development under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) is needed.





ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs