Citation Nr: 1333149 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 06-19 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran retired from active duty in May 1982. He served 20 years. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied service connection for hearing loss and tinnitus. The RO in Houston, Texas, currently has jurisdiction over the Veteran's VA claims folder. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in October 2012 and July 2013, at which time the current appellate claim was remanded for further development to include new VA medical examinations. Such examinations were accomplished in February and September 2013, and all other development directed by the Board's remand directives appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As an additional matter, the Board notes that the prior remands also addressed the issue of entitlement to service connection for hearing loss. However, service connection was established for this disability by a February 2013 rating decision. The Veteran has not, to the Board's knowledge, expressed dissatisfaction with this decision to include the initial rating assigned or effective date thereof. Therefore, this matter has been resolved and is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board further notes that the Veteran also perfected appeals on issues other than the tinnitus and hearing loss claims. However, these claims were either formally adjudicated by the Board's prior decisions or otherwise resolved to the point that only the tinnitus claim remains in appellate status. FINDINGS OF FACT The record reflects it is at least as likely as not that the Veteran developed tinnitus while on active duty and/or as secondary to his service-connected hearing loss. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013); Charles v. Principi, 16 Vet. App. 370 (2002); McLain v. Nicholson, 21 Vet. App. 319 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this decision, however, the Board grants service connection for tinnitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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). Service connection may also be established for certain chronic diseases that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has essentially contended, to include at his June 2012 hearing, that while in the Navy for 20 years, he worked much of the time as a boiler technician on ships, which resulted in exposure to loud noise over that extended period. He maintains that this in-service noise exposure caused his hearing loss and tinnitus, and has suggested he has had symptoms of hearing loss and recurrent symptoms of tinnitus since service. In making all determinations, the Board must fully consider the lay assertions of record. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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 v. Nicholson, 492 F.3d 1372, 1376-77. The Board notes that this is of particular significance in this case because tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. In short, lay testimony plays an unusually important role in these determinations. The Board further notes that, as discussed in the October 2012 remand, the Veteran's service treatment records indicated a worsening of the Veteran's hearing acuity bilaterally over the period of service. The Board stated that such evidence suggests there may have been some injury or disease during service impacting on the Veteran's hearing. For example, at a November 1980 examination, audiology findings for the left ear included an auditory threshold of 40 decibels at 4000 Hertz , reflecting a hearing disability in that ear under VA's definition of impaired hearing to be considered a disability. However, later at the February 1982 retirement examination, the left ear did not meet criteria to be considered a hearing loss disability. The Board acknowledges that both the February 2013 and September 2013 VA audio examinations concluded, in pertinent part, that the Veteran did not report recurrent tinnitus. However, such a finding is inconsistent with the Veteran's prior contentions that he does experience recurrent tinnitus, to include at the June 2012 Board hearing. Moreover, even if the Veteran did not have tinnitus on the date of these examinations, which suggests the condition may have resolved, the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007), that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In view of the foregoing, the Board finds that the Veteran satisfies the criteria of a current tinnitus disability for the purposes of this appeal. As such, resolution of this case is over the etiology of the disorder, not its existence. In this case, the Board has found the Veteran's contention that hearing loss and tinnitus developed while on active duty to be credible. As already noted, such lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles, supra. Moreover, service connection has already been established for hearing loss based, at least in part, upon evidence it developed while on active duty. Additionally, tinnitus is often associated with, or a component of, sensorineural hearing loss. Thus, if the hearing loss developed while on active duty it stands to reason that tinnitus, if present, developed at that time as well; or that tinnitus developed secondary to the hearing loss. The Board also notes that the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the record reflects it is at least as likely as not that his tinnitus developed while on active duty and/or as secondary to his service-connected hearing loss. Therefore, service connection is warranted for this disability. ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs