Citation Nr: 1336508 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-10 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from June 1982 to June 1985. The present matter comes to the Board of Veterans' Appeals (Board) on appeal following an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2012, the Veteran testified before the undersigned during a Travel Board hearing. FINDING OF FACT The Veteran has tinnitus that is attributable to his active military service. CONCLUSION OF LAW The Veteran has tinnitus that is the result of injury or disease incurred in active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. § 1131; 38 C.F.R. § 3.303. The Veteran has reported that he experiences tinnitus and has attributed the disability to noise exposure as a gunner on a U.S. Army Bradley mechanized track vehicle. The Veteran's service treatment records do not reflect complaints or a diagnosis associated with tinnitus. The medical opinion evidence of record is unfavorable to the Veteran's claim. In a report of July 2010 audiological examination, the examiner commented that the Veteran had hearing loss and tinnitus, and that the tinnitus was likely a symptom of the hearing loss. The examiner opined that neither the Veteran's hearing loss nor his tinnitus was related to service. In so finding, the examiner reported that she found no significant threshold shift (worsening) of hearing in service to associate with tinnitus. She otherwise identified significant occupational noise exposure and also noted that the Veteran's hearing loss and tinnitus "may be" associated with other than military noise exposure. Otherwise, none of the private medical evidence received reflects a medical opinion relating the Veteran's tinnitus to his active duty service. At his hearing before the undersigned, the Veteran testified that as a Bradley mechanized track vehicle gunner, he was exposed to noise from various weapons associated with the Bradley vehicle. Also, he was unable to use the provided hearing protection as it inhibited his ability to hear the "turret commander" identify targets and give commands. Additionally, the Veteran testified that his battle helmet was otherwise ineffective in protecting him the noise of the Bradley vehicle weapons. The Veteran also testified that noise exposure took place during live-fire military training exercises and that the exercises were undertaken six times a year and lasted a week at a time. During those periods, the firing was on a rotating basis with other vehicles and tanks and would be both during the day and evening hours. Furthermore, the Veteran stated that after participating in a live-fire training exercise, he would experience ringing in his ears later that evening that made it difficult to sleep. He added that the ringing in his ears had been a problem since his discharge from the military. The Veteran also reported that his private treating physician thought the tinnitus was related to military noise exposure. Otherwise, the Veteran testified that he had used hearing protection during his post-service employment, and that he had been experiencing ringing in his ears prior to that time. In this case, the medical evidence currently of record does not reflect a medical opinion relating the Veteran's current tinnitus to service. Treatment records from the Veteran's private physician, who is identified at the Board hearing as having linked the Veteran's tinnitus to service, are not of record. (Parenthetically, the Veteran was unsure if the physician ever noted a nexus between service and tinnitus in any treatment record.) The Veteran has testified that he first saw a clinician regarding his tinnitus in 2010, some 25 years after his discharge from service. The Board is mindful that when assessing a claim, it may not consider the absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Also, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Additionally, a lay person is competent to testify in regard to the onset and continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not discredit a Veteran's lay testimony merely because it is not corroborated by contemporaneous medical records. Id. at 1335-36. Furthermore, the Veteran, as a layperson, is competent to describe experiencing ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to continuity of symptoms, the report of July 2010 VA audiological examination notes the Veteran's tinnitus as constant and the onset being 12-15 years prior to the July 2010 examination date. Whether the tinnitus became constant between 1995 and 1998 (as compared to intermittent), or whether the tinnitus first manifested after service during that period, is not clear. Otherwise, in his notice of disagreement, received in September 2010, the Veteran noted "condition developed gradually post ets." (Parenthetically, the acronym ETS would appear to stand for, in this instance, "expiration term of service.") Additionally, during his Board hearing, the Veteran answered "yes" to his representative's question as to whether the Veteran had experienced ringing in his ears since his discharge from the military. The Veteran's reported history, above, appears to conflict and it could be interpreted two ways, based on the reported history noted in the July 2010 VA examination. The history could be accepted as identifying the post service onset of tinnitus sometime between 1995 and 1998, a number of years after the Veteran's separation from the Army in 1985. The history could also be accepted as reflecting ongoing symptomatology of tinnitus after discharge, apparently of an intermittent nature, which later became constant sometime between 1995 and 1998. Interpreting the reported history in light most favorable to the Veteran, the Board accepts the Veteran's lay history of a continuity of symptoms of tinnitus (ringing in the ears) associated with a history of tinnitus in service due to live-fire military training exercises. In this regard, the Board finds the Veteran's testimony credible as to noise exposure in service and the lack of use of adequate hearing protection at the time of the noise exposure. The Board has weighed the Veteran's statements and testimony with the other evidence of record, to include his reported use of hearing protection in a post-service occupational work setting and the unfavorable VA opinion in July 2010. The Board finds persuasive that the July 2010 examiner concluded that the Veteran's tinnitus "may be" associated with noise exposure other than that exposed to in the military. The examiner's use of the words "may be" does not connote a conclusive finding. See e.g. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran "may have" been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). Thus, the evidence taken as a whole, at the very least, raises a reasonable doubt as to the etiology of the Veteran's current tinnitus, notwithstanding the July 2010 VA opinion. Therefore, after consideration of the lay and medical evidence of record, and finding reasonable doubt in favor of the Veteran, service connection for tinnitus has been established. 38 U.S.C.A. § 5107, 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs