Citation Nr: 1333633 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-23 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Chicago, Illinois RO has since maintained jurisdiction over the claim. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in Indianapolis, Indiana in August 2008. This transcript has been associated with the file. The case was brought before the Board in March 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran. Thereafter the Board remanded the claim again in August 2012. The directives of the Board's remands have been substantially complied with. The Board also previously remanded the issue of service connection for hypertension. However, the RO granted this claim in a June 2013 rating decision; thus there remains no case or controversy with respect to that issue. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record via a packet of information including Social Security Administration (SSA) records received by the RO on May 31, 2013, but has not been recently adjudicated by the Agency of Original Jurisdiction (AOJ) since its denial of a TDIU in a May 10, 2013 rating decision. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's DD Form 214 shows that he earned, in pertinent part, the Combat Infantryman Badge, and his reports of in-service incurrence of tinnitus are consistent with the circumstances of his combat service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304(d) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for tinnitus. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). As the Veteran's claimed tinnitus is not a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case; and the evidence must show that the disability was incurred or aggravated in service under the provisions of 38 C.F.R. § 3.303(a)(d). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran contends that his tinnitus is the result of exposure to loud noises during active duty. He indicated that his tinnitus began during active duty when he was subjected to noise from rifles, machine guns, mortars, grenades, and bombers. See e.g., August 2008 DRO hearing transcript. The Veteran's DD Form 214 shows that he earned, in pertinent part, the Combat Infantryman Badge. Therefore, 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 C.F.R. § 3.304(d). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The Veteran's military occupational specialty (MOS) in the Army has been identified as an occupation where there was a high probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). Therefore, his statements as to the incurrence of tinnitus in service due to acoustic trauma are consistent with the circumstances of his service. Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." 59 Fed. Reg. 17,297 (April 12, 1994). The evidence shows that tinnitus is a subjective disorder that is not capable of being detected objectively. The Veteran reported that his onset of tinnitus occurred during his military service. He also has asserted exposure to acoustic trauma in the Army. In addition as he is a combat veteran, his statements as to the in-service incurrence of tinnitus are accepted as sufficient proof of service connection, as they are consistent with his MOS of light weapons infantryman. He is competent to state that which he can observe or experience, including exposure to acoustic trauma and tinnitus. The Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the Veteran's statements with respect to his tinnitus constitute competent evidence. The Board must now consider the credibility of such evidence. As noted, the service treatment records are negative for any complaint of tinnitus, but the Veteran also has acknowledged that he did not complain of tinnitus in service. There also is no reason shown to doubt his credibility when he asserts that he has experienced tinnitus since service. While the record shows that the Veteran did not complain of tinnitus until he filed his claim in 2006 (although he denied tinnitus on examination in July 2006), this does not constitute clear and unmistakable evidence to rebut the presumption that he incurred tinnitus during his combat service. The medical evidence after the July 2006 examination consistently reports that the Veteran indicated having tinnitus since his exposure to acoustic trauma in military service. While the VA examiners in June 2011 and February 2013 determined that the Veteran's tinnitus was less likely than not related to the Veteran's military service due to the long period of time that had passed since his exposure to acoustic trauma, the examiners did not consider the fact that the Veteran was a combat Veteran and that any statements to the effect that he experienced tinnitus in service should be accepted as credible evidence of in-service incurrence of tinnitus absent any clear and unmistakable evidence to the contrary. Thus, the negative opinions provided are not probative. Without probative medical evidence, we only have the Veteran's statements to rely on. As noted, he is shown to be competent to report the onset of his tinnitus and there is no reason shown to doubt his credibility, nor clear and unmistakable evidence to rebut his lay statements as to the in-service incurrence of tinnitus during his combat service. For this reason, all reasonable doubt is resolved in the Veteran's favor, and the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs