Citation Nr: 1336456 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-42 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1963 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, which, in pertinent part, denied service connection for tinnitus. In April 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. FINDING OF FACT The Veteran's tinnitus is causally related to his acoustic trauma in service and/or his service-connected hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (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, which 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. Tinnitus The Veteran seeks service connection for tinnitus, both as secondary to his back surgery, and directly related to acoustic trauma in service. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Service connection also may be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). At the outset, the Board notes that the Veteran's DD-214 shows that he was an Avionics Maintenance Electronic Technician during his service in the U.S. Navy. He also is presently service-connected for hearing loss secondary to his exposure to acoustic trauma in service. Thus, exposure to acoustic trauma in service is conceded. 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 Veteran's service treatment records are negative for any findings of tinnitus. The first mention of tinnitus on a medical record is on a VA pre-operation treatment record dated in January 2008, which notes that the Veteran had mild tinnitus. However, on statements in August 2008 and on his VA Form 9 in September 2010 the Veteran stated that he had experienced ringing in his ears since being exposed to jet engine noise in service. He recalled he had problems holding a conversation due to the ringing in his ears. He further noted that ever since his back surgery in February 2008, the tinnitus increased in severity causing him to have problems hearing people and sleeping. On a statement on an April 2008 VA audiology consult and during his hearing testimony, however, the Veteran indicated that he did not notice tinnitus until after his back surgery. See April 2013 Board hearing transcript, p. 4-5. The record shows that the Veteran actually reported mild tinnitus prior to his back surgery, as noted above. After the operation the Veteran had complaints in February 2008 of difficulty sleeping and ringing in his ears since the back surgery. The Veteran underwent a VA examination in November 2008. He again reported the onset of tinnitus in February 2008 following back surgery. The examiner determined that it was less likely than not that the Veteran's tinnitus was due to his military occupational specialty as an ATN avionics maintenance electronics technician, as the tinnitus was absent until earlier that year following back surgery and had not been existing prior to that time. The Veteran underwent another VA examination in August 2010. The Veteran indicated that he did not notice any tinnitus prior to his back surgery and reported noticing it right after his back surgery. The examiner determined that it was less likely as not that the Veteran's tinnitus was related to back surgery or medication. The rationale was that the Veteran reported mild tinnitus on the pre-operative examination in January 2008; and there was no literature supporting tinnitus as a significant side effect of Ancef (the antibiotic given prior to surgery). Therefore, the examiner determined that the Veteran's tinnitus might either be related to his service-connected hearing loss or other health conditions prior to his back surgery. After a careful review of the evidence of record, the Board finds that the Veteran suffers from a tinnitus disability related to his military service and/or service-connected hearing loss disability. In making this determination, the Board notes that the Veteran's assertions that he first noticed tinnitus in service and has continued to experience tinnitus since service are found to be capable of lay observation, and thus his statements constitute competent evidence. 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). 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). 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 medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Veteran's statements with respect to his tinnitus are considered competent. The Board must now consider the credibility of such evidence. The Veteran has submitted inconsistent statements on medical records and written statements regarding the onset of his tinnitus. Notwithstanding the Veteran's inconsistent statements, the Board will accept the Veteran's statements regarding experiencing tinnitus since service with a worsening after his back surgery as credible, as it is consistent with his exposure to acoustic trauma in service and the treatment records noting complaints of tinnitus prior to the back surgery. While tinnitus apparently was not a significant problem for the Veteran until after his back surgery in 2008, nonetheless, the Veteran's lay statements with respect to his complaints of tinnitus are deemed credible and provide probative evidence of chronic symptomatology since service. See Savage v. Gober, 10 Vet. App. 488 (1997). Regarding the medical evidence of record, the opinion from the November 2008 VA examiner does not have any probative value, as the examiner based the opinion that the Veteran's tinnitus was not related to service on the fact that he did not report tinnitus until after his back surgery. However, the examiner did not account for the fact that treatment records actually reflected complaints of tinnitus prior to the back surgery. The August 2010 VA examiner's opinion also is not highly probative, as while the examiner determined that the Veteran's tinnitus was not secondary to the back surgery, the examiner provided a somewhat equivocal opinion that the Veteran's tinnitus might be secondary to his service-connected hearing loss or other health conditions prior to back surgery. The examination findings further report that the Veteran's tinnitus was likely a symptom associated with hearing loss, which is actually in favor of the Veteran's claim, as he is service-connected for his hearing loss disability. There are no other medical opinions of record addressing the etiology of the tinnitus. In weighing the conceded exposure to acoustic trauma in service, the medical evidence suggesting a relationship between the Veteran's tinnitus and his service-connected hearing loss, and the, albeit inconsistent, statements from the Veteran regarding chronic symptomatology of tinnitus in service and for many years after service, the Board finds that the evidence is relatively equally balanced in terms of whether he has tinnitus related to his military service and/or his hearing loss disability, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to 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