Citation Nr: 1335333	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  09-28 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Barone, Counsel



INTRODUCTION

The Veteran served on active duty from April 1971 to January 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in February 2009 (expressly limiting the appeal to the single issue addressed by this Board decision), a statement of the case was issued in July 2009, and a substantive appeal was received in July 2009.

The Board notes that the Veteran requested (in his substantive appeal submission) to be scheduled for a Board hearing in connection with this appeal.  The Veteran was scheduled for a January 2012 Board videoconference hearing, but documentation in the claims file shows that the Veteran's representative contacted VA in January 2012 to provide notice that the Veteran no longer desired a hearing in this matter.

The record reflects that in June 2012 the Veteran submitted additional evidence to the Board in conjunction with this case.  The new evidence was not accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304.  However, given the favorable action taken herein with regard to the issue of entitlement to service connection for tinnitus (a complete grant of the full benefit sought on appeal), the Board finds that there is no possible prejudice to the Veteran is proceeding with issuance of a final decision at this time.


FINDING OF FACT

The Veteran's tinnitus is reasonably shown to be causally or etiologically related to his military service.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 1154(b), 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126.  The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants.

The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of entitlement to service connection for tinnitus, no further discussion of the VCAA is required with respect to this claim.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747.

The Veteran claims entitlement to service connection for tinnitus.  Essentially, the Veteran contends that he currently suffers from tinnitus as a result of acoustic trauma associated with his proximity to large caliber gunfire during training and combat during active duty military service.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In rendering a decision on appeal, 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra.

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (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); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007)  (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 310 ("[T]he Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

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.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA", with an emphasis on the evidence relevant to the matter on 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.

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source.

The Veteran contends that he developed intermittent tinnitus during service in connection with numerous episodes of acoustic trauma, and he contends that he now suffers from persistent chronic tinnitus that is related to the in-service acoustic trauma.  His account of the history of his tinnitus symptoms, including as documented in a September 2008 VA examination report, explains that "the tinnitus would occur following big gun fire (last approximately 1-2 hours) while in the service and then go away.  He has reportedly experienced tinnitus periodically (once a month) until approximately 5 years ago when it became constant."  The Veteran explains, including as presented in his June 2008 written statement, that his service featured more than three years of involvement in "gunfire training exercises," "amphibious combat operations in Republic of Viet Nam Dec 1971-Aug 1972," and shipboard service in which his "general quarters (battle) station was the bridge or bridge wing ... forty feet forward of the starboard side, twin 3[inch] 50 cal gun turret."  The Veteran asserts: "Without hearing protection I was exposed to ear drum shock as rounds were fire[d] either in combat operations June 1972, or during numerous gunfire training exercises over the 3-1/2 years assigned in U.S.S. Schenectady (LST-1185)."  The Veteran argues that the intermittent tinnitus he experienced during service and following service has progressed to a more persistent chronic tinnitus in recent years; he contends that the current chronic tinnitus has its etiological origins in his in-service acoustic trauma.

The Board notes that the Veteran's service treatment records do not contain any apparent documentation of complaints of tinnitus or ear problems during his military service.  The Veteran's January 1975 service separation examination report indicates that no clinical abnormalities of the Veteran's ears were observed at the time of his separation; this report does not appear to be accompanied by any medical history questionnaire or any other manner of expanded documentation of the Veteran's subjective symptom history as of that time.

The Veteran is competent to describe what he experienced in service, and the Board finds the Veteran's testimony to be essentially credible in this case; the evidence of record raises no compelling reason to question the credibility of the Veteran's account, and service records present some reasonably supportive information in this regard.  The Board finds that the available evidence sufficiently establishes that the Veteran was exposed to significant acoustic trauma during his military service.  The Veteran has specifically and consistently testified, including in a March 2008 written statement (in addition to the June 2008 statement, discussed above), that he served aboard the "USS Schenectady LST-1185 Tank Landing Ship from October 1971 - January 1975."  He explains that his "primary duties were in the Navigation group and providing range and bearing information to fire control center during gunnery practice or battle operations."  The Veteran's cited occurrences of acoustic trauma include:

exposure to effects of firing of 3[inch] - 50 Caliber twin gun batteries during standard gunnery exercises throughout my assignment aboard Schenectady, and during battle actions in June of 1972 off Hon Gio, (Tiger Island), adjacent to the Demilitarized Zone (DMZ) between North and South Viet Nam during operations in support of Republic of Viet Nam military forces in recapturing the overrun province of Quang Tri during the Communist Easter Offensive of March, 1972.

The Board notes that the Veteran's Form DD-214N shows that the Veteran completed Naval Quartermaster training consistent with his description of duties.  He had more than three years and three months of "Foreign and/or sea service" between 1971 and 1975, consistent with his testimony.

Significantly, the Veteran was awarded the Combat Action Ribbon for his service, confirming his account of active participation in combat.  Under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service.  The Board finds that the Veteran is entitled to the relaxed evidentiary presumptions of § 1154(b) with respect to his testimony concerning exposure to significant acoustic trauma during combat operations in his active duty service.  The Board notes that the Veteran's account of in-service acoustic trauma documented in the September 2008 VA examination report includes "exposure to artillery fire, incoming rounds, and ... big gun fire throughout combat...."  The Veteran's statements also indicated that he did not wear hearing protection during these events.

The Board finds that the Veteran's testimony regarding in-service acoustic trauma has been consistently and credibly presented, is consistent with the documented details of his service, and involves the Veteran's active participation in combat.  The Veteran has described a history of exposure to loud sounds in service and has stated that his tinnitus began with symptomatic episodes at the times of these in-service acoustic traumas.  As previously discussed above, the Veteran is competent to report his experiences and symptoms in service.  Furthermore, the Veteran's established status as a combat Veteran leads the Board to presume the occurrence of the acoustic trauma and tinnitus symptoms (ringing in his ears) to the extent that these have been described as occurring during his participation in combat.  The Board finds no significant evidence contradicting the Veteran's account of in-service acoustic trauma and associated in-service episodes of tinnitus symptoms.  Accordingly, the Board finds that the occurrence of in-service acoustic trauma and in-service episodes of tinnitus symptoms have been reasonably demonstrated by the evidence of record in this case.

The Veteran has described, including as documented in the September 2008 VA examination report and in the Veteran's February 2009 notice of disagreement, that he has not had any post-service experiences of significant acoustic trauma.  The Veteran's February 2009 notice of disagreement denies any significant acoustic trauma outside of his military service and discusses that "[e]ven my post service law enforcement career and firearms training was always with use of the best hearing protection to prevent such a problem from worsening."  (Emphasis in original).  The Veteran made a consistent report to the September 2008 VA examiner, citing consistent use of hearing protection throughout his 12 year career as a police/security officer.

The September 2008 VA examination report presents the VA examiner's opinion that the Veteran's tinnitus "is due to other factors (i.e. age, continued noise exposure as a civilian) and NOT likely due to military acoustic trauma."  The cited basis for this conclusion was that the VA examiner "did not find any evidence in the active duty section of the C-file for a complaint of tinnitus," and that the Veteran "states that it [tinnitus] was periodic (once a month) prior to 5 years ago which is considered normal tinnitus."

Significantly, the Veteran has subsequently submitted a copy of pages from a more recent February 2012 consultation with a VA otolaryngologist that expresses a contrary conclusion.  Based upon examination and interview of the Veteran, as well as discussion of his "[s]service in Navy with exposure to acoustic trauma from large caliber gunfire aboard ship, Viet Nam," the otolaryngologist  presents the opinion that the Veteran has "Mild sloping neurosensory hearing loss which is consistent with tinnitus.  Not on ASA.  Both consistent with excessive noise exposure in military."

In considering these conflicting pertinent medical opinions regarding the etiology of the Veteran's tinnitus, the Board notes that the September 2008 VA examiner appears to have relied upon an understanding that there was no adequate evidence to find that the Veteran actually had symptoms of tinnitus during service.  However, the Board's own analysis, with consideration of 38 U.S.C.A. § 1154(b), leads the Board to conclude that in-service symptoms of tinnitus are reasonably established by the Veteran's testimony in this case; he stated to the September 2008 VA examiner that "tinnitus would occur following big gun fire," which the Board understands to include gunfire in his combat experience.  As the Board finds that the Veteran has reasonably established the occurrence of some episodes of tinnitus symptoms during service, and as the September 2008 VA examiner's opinion expressly cites the absence of shown in-service tinnitus symptoms, the Board must find that the probative value of the September 2008 VA examiner's opinion is reduced.  The September 2008 VA examiner's opinion essentially relies upon an inaccurate factual predicate when it cites the absence of a showing of in-service tinnitus symptomatology in this case.

The February 2012 medical from a VA otolaryngologist is supportive of the Veteran's claim and reasonably appears to contemplate a factual history that is consistent with the evidence of record.  To the extent that the February 2012 opinion relies upon the Veteran's own description of his symptoms, the Veteran is competent to describe his symptoms of tinnitus and the Board finds his descriptions to be credible in this case.  The otolaryngologist's reliance upon the Veteran's credible description of his tinnitus symptoms does not reduce the probative value of the medical opinion in this case.

In considering the evidence of record, the Board finds that the Veteran's current tinnitus cannot be reasonably disassociated from his conceded in-service exposure to loud noises and in-service episodes of tinnitus symptoms.  In arriving at this decision, the Board relies upon the (1) Veteran's conceded noise exposure (including in connection with participation in combat), (2) his conceded in-service episodes of tinnitus symptoms (including in connection with participation in combat), (3) his credible post-service assertions that he continued to experience monthly recurrence of tinnitus from the time of his service until the symptoms became more persistent in approximately 2003, and (4) the positive nexus opinion presented by a VA otolaryngologist in February 2012 (together with the discounted probative value of the negative September 2008 VA opinion).

The Board notes that, in March 2010, the Veterans Benefits Administration (VBA) published a training letter concerning the adjudication of claims for hearing loss and/or tinnitus. See VBA Training Letter 211D (10-02) (March 18, 2010).  As indicated in Training Letter 10-02, "[t]innitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss."  The Board observes that, although the Veteran withdrew his appeal seeking service connection for hearing loss (upon being informed that his hearing acuity did not meet the applicable thresholds to be considered disabling for VA purposes), it is noteworthy that the February 2012 VA Otolaryngology report presents the examiner's finding that the Veteran does have "[m]ild sloping neurosensory hearing loss which is consistent with tinnitus .... Consistent with excessive noise exposure in military."  The Board finds that this suggests objective findings consistent with the Veteran's tinnitus complaints and consistent with an acoustic trauma etiology.

In sum, the positive February 2012 VA otolaryngology opinion indicates that, at minimum, the Veteran's tinnitus is consistent with tinnitus due to noise exposure.  The Veteran is competent to describe his symptoms of tinnitus, and the Board finds his descriptions to be credible, such that the otolaryngologist's reliance upon the Veteran's description of his tinnitus symptoms does not reduce the probative value of the opinion.  The record reflects that the Veteran served for an extended period in conditions substantially consistent with significant acoustic trauma.  The Board has conceded that the Veteran had noise exposure in service.  The Board has also recognized the Veteran's testimony regarding experiencing episodes of tinnitus symptoms during service to be adequate to establish the occurrence of such episodes at least to the extent that they are described in connection with his active combat participation.  The Veteran has not reported, nor does evidence otherwise indicate, significant occupational noise exposure (aside from that for which he was equipped with hearing protection), nor any recreational noise exposure.

The evidence in this case is not entirely clear on every element, and a grant of the appeal may not be compelled by a clear preponderance of evidence in the Veteran's favor.  However, the Board finds that the evidence is at least in equipoise; the Board will resolve reasonable doubt about the connection between the current tinnitus and the noise exposure / symptomatology during service in his favor and grant service connection for tinnitus.  In light of the lay evidence of record together with the positive February 2012 VA medical opinion (and the discounted probative value of the negative September 2008 VA medical opinion), in consideration of Training Letter 10-02, and in resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for tinnitus is granted.



____________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs