Citation Nr: 1335965 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-24 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATIVE Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and K. Moore ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1984 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a July 2010 video conference hearing before the undersigned. A transcript of the hearing is associated with the claims file. FINDING OF FACT There is competent clinical evidence that relates the Veteran's current tinnitus to active duty. CONCLUSION OF LAW Tinnitus was incurred during active duty. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, service connection for certain chronic diseases, including tinnitus, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran contends that he has constant ringing in his ears as the result of noise exposure during active duty. The Veteran describes his experiences in field artillery, which included working on an eight inch gun and being exposed to the sounds of the m110 howitzer and 50 caliber guns going off night and day. He states that they had stayed in the field two weeks out of every month and that he often did not wear hearing protection. Even when he did wear hearing protection, the Veteran reports that it had to be switched multiple times because the hearing protection was ineffective. He claims that he experienced tinnitus at the time of his separation from service but did not file a claim as he did not understand the nature of tinnitus. The Veteran asserts that he has never worked around any loud equipment since active duty and has had constant ringing in his ears since active duty. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability for purposes of service connection. The Veteran's DD-214 shows that his military occupation specialty was cannon crewmember. Service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of tinnitus. Although tinnitus was not shown or reported during active duty, however, the Board concedes exposure to acoustic trauma as the Veteran's descriptions of his in-service noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno, 6 Vet. App. at 469-70 (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Here, the Board finds the Veteran's military occupation specialty corroborates his reports of his in-service duties and noise exposure. With evidence of a current disability and an in-service event, the remaining element required to establish service connection is a nexus between the current disability and the in-service event. Here, there are conflicting medical opinions of record regarding a nexus between the Veteran's current tinnitus and active duty. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the United States Court of Appeals for Veterans Claims (Court) has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). Upon review, the Board finds the clinical evidence is at least in relative equipoise as to whether tinnitus was incurred during active duty. In connection with his claim, the Veteran underwent VA examination in December 2011 and October 2012, and a VA physician provided an addendum opinion in November 2012. First, the December 2011 VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The VA examiner noted that the Veteran's military occupation specialty likely exposed him to high risk noise; however, the VA examiner focused on the service treatment records, which did not indicate that this exposure had a permanent negative impact of tinnitus and did not demonstrate any complaints of or treatment for tinnitus. As noted above, however, service connection may 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. In addition, the VA examiner stated that it was not within the audiologist's scope of practice to determine the etiology of tinnitus if not associated with hearing loss. The Court has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010). As such, the Board finds the December 2011 VA examination carries little probative value. In October 2012, the VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The VA examiner's rationale focused on the Veteran's alternative contention that his tinnitus was secondary to a head injury incurred during active duty in 1985. Because it does not appear that the VA examiner's opinion includes consideration of the Veteran's testimony and written statements asserting a relationship between his tinnitus and in-service noise exposure, the Board finds the October 2012 VA opinion lacks probative value. Similarly, the November 2012 VA physician focused on the Veteran's reports of an in-service head injury and a connection between a head injury and tinnitus. In addition, the VA physician concentrated on the absence of complaints of and treatment for tinnitus in the service treatment records. Again, service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. As such, the Board affords the opinion provided by the November 2012 VA physician little probative value. In support of his appeal, the Veteran submitted records from Barnes Jewish Hospital dated in July 2010, which show he reported a history of bilateral tinnitus that he had noticed at the time of his discharge from the military. The Veteran stated that he was involved in very loud field artillery work two weeks out of every month for two years and that he had tried seven different types of ear protection. The impression was noise-induced tinnitus. Also of record is a November 2011 medical examination report from a private physician, Dr. C. F. The Veteran reported a history of tinnitus for 20 years and that he had been in the armed forces around significant loud noises. Dr. F. opined that the Veteran's tinnitus was all related to the noise he was exposed to while serving this country. The assessment was tinnitus from noise exposure in the Armed Forces. Although the evidence does not demonstrate that Dr. F. reviewed the Veteran's claims file, the Board may not disregard a favorable medical opinion solely because it was based on a history given by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Rather, reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. Coburn v. Nicholson, 19 Vet. App. 427 (2006). In this case, the Board finds no reason to doubt the Veteran's credibility with respect to his in-service noise exposure and the continuity of his symptoms. Given the Veteran's in-service noise exposure and his credible lay testimony, as well as Dr. Falcone's positive opinion, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's tinnitus is related to his in-service noise exposure. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds tinnitus was incurred in active duty. Therefore, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs