Citation Nr: 1336286 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-01 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1969. He saw combat in Vietnam and was awarded the Combat Infantryman Badge. He sustained shrapnel wounds of his neck and right upper extremity during service. This matter comes before the Board of Veterans' Appeals Board on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Bilateral hearing loss is not on appeal because the Veteran's November 2010 Notice of Disagreement and January 2012 VA-9 form only appealed the RO's denial of tinnitus. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. FINDINGS OF FACT The evidence relating tinnitus to service is in equipoise as to whether he had it in service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the requirements for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Merits of the Claim The Veteran seeks service connection for tinnitus. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is in equipoise, and therefore the criteria for entitlement to service connection for tinnitus have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a disability resulting from that injury. 38 C.F.R. § 3.303. As detailed below, the Veteran has a current disability of tinnitus. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C.A. § 7104(a). In addition, the Board must consider all information and lay medical evidence. 38 U.S.C.A. § 5107(b). In doing so, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's statements, VA examinations, service treatment records and VA medical center outpatient treatment records. The Veteran reported constant tinnitus in his left ear at the July 2010 VA examination. The Veteran is competent to testify as to this disability, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (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). Therefore, the Veteran has a current disability of tinnitus. There is reported evidence of an in-service injury. In his February 2010 claim, the Veteran stated that he was exposed to combat noise during service. This statement is corroborated by his Military Occupational Specialty, and Combat Infantryman Badge, as noted on his Form DD-214. The Veteran is competent to describe what he experienced in service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds the Veteran's statement regarding his service and duties credible, as they match his listed Military Occupational Specialty and awards. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The VA conceded noise exposure. Although the October 2010 rating decision did not concede in-service noise exposure, the January 2012 Statement of the Case conceded that the Veteran was exposed to combat and at least some hazardous military noise. Therefore, there is competent and credible lay evidence of in-service noise exposure. The remaining question, therefore, is whether there is evidence of a nexus between the current disability and the in-service disease or injury. The Veteran was afforded an April 2010 VA examination, but there were no results as the Veteran had impacted earwax. The Veteran was given a July 2010 VA examination which was thorough and provided a rationale for its negative etiological conclusion. The examiner noted the Veteran's statement that he had ringing in his ear since 1967and opined that it was not at least as likely as not related to service because there was no evidence of complaints of tinnitus in service records or examinations. The Veteran believes that his tinnitus is related to his service. As discussed above, the Veteran is competent to report his tinnitus. Although there is no record of post-service complaints or treatment before the February 2010 claim, the Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of in-service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran stated at the VA examination that he began experiencing tinnitus in 1967, which was during his service in Vietnam. The Board finds the Veteran's statement of continuity credible because he has repeated it consistently with no change and there was no audio examination upon his separation from service that could provide contradictory evidence. Therefore, the Board must consider the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). As noted above, in certain cases, any element of service connection can be proven by lay evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran is competent to relate his in-service noise exposure to his current disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As tinnitus is something which a lay person can observe, in this case, the Board finds the Veteran competent and credible to opine as to its etiology as well. Here, the Veteran's statements agree with his Military Occupational Specialty and awards, he has a current disability of tinnitus and because of his consistent statements he is credible to give a positive etiological opinion regarding his contemporaneous disability. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is evidence that tends to show that the Veteran's disability is not service-connected, such as the VA examination, there is also his lay evidence that shows there is a nexus between his disability and his service. The Board is of the opinion that this point of equipoise has been reached in the instant case. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not the Veteran's tinnitus is service-connected. Id. Accordingly, service connection for tinnitus is granted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs