Citation Nr: 1332896 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-25 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. FINDING OF FACT It is reasonably shown that the Veteran's tinnitus is related to his service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis 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; 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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 include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's DD Form 214 shows that he served in Vietnam, that his military occupational specialty (MOS) was aircraft metal worker, and that he received a Purple Heart award. Therefore, the Board notes the potential applicability of 38 U.S.C.A. § 1154(b). That statute states that for any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b). The Veteran's service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnosis of tinnitus. In February 2008, the Veteran filed a claim of service connection for tinnitus. Throughout the period of appeal, he has contended that he has had ringing in his ears due to exposure to noise trauma in service (particularly from mortar and rifle fire, air compressors, and rivet guns) without ear protection. He has also consistently denied a history of any significant postservice occupational or recreational noise exposure. On July 2008 VA audiological examination, the examiner referred to a February 2005 VA audiological consultation during which the Veteran had reported tinnitus as periodic, occurring "daily to weekly." At the current examination, the Veteran reported experiencing constant ringing tinnitus in both ears, with an onset of "years" unknown with unknown cause. He described his military noise exposure and reiterated that he had no significant postservice occupational or recreational noise exposure. The examiner opined that the claimed tinnitus was less likely as not to be caused by noise exposure experiences while in the Army. The examiner noted that the Veteran could not determine the approximate date of onset or cause of his tinnitus, and that his military documentation was silent regarding tinnitus experiences. In his October 2008 notice of disagreement, the Veteran stated that the July 2008 VA examiner "made an improper decision based upon incomplete information." He noted that the only question the examiner had asked him was how long he had had tinnitus, and the Veteran had replied that he "honestly could not say, but that it had been a long time." At his September 2012 Travel Board hearing, the Veteran testified with regard to his military noise exposure and reiterated that he had no significant postservice occupational or recreational noise exposure. He also testified that he did not know how long he had had the ringing in his ears, but stated that "[i]f I didn't have it when I was discharged[,] I had [it] within just a few months after that but I can't be specific as to when it started." The Veteran's wife then testified that she recalled that the Veteran first complained of tinnitus in 1968 or 1969. It is not in dispute that the Veteran has tinnitus, as the competent (medical) evidence of record documents his complaints of such, and tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, the Board once again notes that the Veteran served in combat, and that he contends that his current tinnitus disability resulted from substantial noise trauma sustained in combat in Vietnam. The Board finds the Veteran's testimony and statements regarding such noise trauma in service to be consistent with his combat service and to be credible. See 38 U.S.C.A. § 1154(b). On longitudinal review of the evidence, the Board finds that the competent evidence of record reasonably supports the Veteran's claim that he has had tinnitus ever since service. See 38 C.F.R. § 3.303(b). In particular, he has consistently asserted that, while he is unsure of the exact date of onset, his tinnitus has been present at least since within a few months after separation from service. His statements, to include the testimony provided during the September 2012 Travel Board hearing, are considered forthright and credible. Furthermore, he is competent to testify as to the symptoms he experiences, including the presence of ringing in the ears. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While the July 2008 VA examiner opined that the Veteran's tinnitus was less likely as not to be caused by noise exposure experiences while in the Army, in rendering the opinion the examiner failed to take into account the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b) that apply as a consequence of the Veteran's acknowledged participation in combat and exposure to related noise trauma in service. Therefore, such opinion is inadequate, and cannot be dispositive. Accordingly, the Board concludes that the evidence supports the Veteran's claim, and that service connection for tinnitus is warranted. ORDER The appeal seeking service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs