Citation Nr: 1337310	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  06-36 476	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for tinnitus.


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 





INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1968 to March 1970, which included service in the Republic of Vietnam.  He is in receipt of the Combat Infantryman Badge and The Purple Heart.




This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In a decision in December 2009, the Board denied, inter alia, service connection for tinnitus and for injuries to cranial nerves II, III, and X, and found that the June 1970 rating decision, which granted service connection for postoperative residuals of a perforating gunshot wound to the left neck and shoulder, involving Muscle Group I and the spinal accessory nerve, and assigned an initial rating of 30 percent, did not contain clear and unmistakable error.  The Board also remanded the claim for service connection for hypertension.

The Veteran appealed the Board's December 2009 decision to the United States Court of Appeals for Veterans Claims (Court).  In a Memorandum Decision issued in April 2012, the Court determined that it did not have jurisdiction over the service connection claim for hypertension, as the Board had not issued a final decision on this issue.  The Court affirmed the Board's decision denying service connection for tinnitus, left the Board's decision denying service connection for injuries to cranial nerves II, III, and X intact, but vacated and remanded the Board's decision that the June 1970 rating decision did not contain clear and unmistakable error, finding that the Board decided the claim prematurely by erroneously implicitly determining that it had jurisdiction to decide this claim.

The Veteran appealed the Court's decision to the United States Court of Appeals for the Federal Circuit, which issued a decision in March 2013 vacating the Court's affirmance of the Board's denial of service connection for tinnitus and remanding the claim for further development.  

As the Board granted service connection for hypertension, the claim is no longer on appeal. 






As the Court determined that the Board lacked jurisdiction to decide the claim of whether the June 1970 rating decision contained clear and unmistakable error, as this issue was not developed by the RO and perfected for appeal, the issue of whether the June 1970 rating decision contained clear and unmistakable error is REFERRED to the RO for development.


FINDING OF FACT

Tinnitus had onset in service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. § 3.303 (2013).


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the Board is granting the claim of service connection, VCAA compliance need not be addressed further.






REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service).

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  The record show that the Veteran was in combat and the combat provisions of 38 U.S.C.A. § 1154(b) apply.

As the Veteran was in combat, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. 




So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b).

The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease or injury was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required.  Stated differently, evidence of a current disability and a nexus to service is still required.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.



When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Evidence

The Veteran reports the onset of his tinnitus during his period of service in Vietnam after his exposure to acoustic trauma.  

The Veteran served on active duty in the U.S. Army from March 1968 to March 1970 as an infantryman, which included a period of service in Vietnam from January 1969 to March 1969.  In February 1969, in Vietnam, the Veteran sustained a gunshot wound to the left side of his neck, and he is service-connected for this disability.

In May 2007, the Veteran was scheduled to attend a VA medical examination to explore the determine the etiology of tinnitus, however, the Veteran was unable to attend the examination because of a lack of transportation to the VA medical facility.  In a statement in June 2007, the Veteran asserted that the examination was unnecessary under 38 U.S.C.A. § 1154(b) and requested that his case be transferred to the Board.

Analysis

On the basis of the service treatment records alone, tinnitus was not affirmatively shown to be present in service.  But the absence of in-service documentation is not dispositive as to whether tinnitus began in service.

Tinnitus is a condition under case law where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation.  



See Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (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).

The Board finds that the Veteran is competent to describe tinnitus and his statements are credible, that is, the statements tend to prove a fact, that is, he noticed that tinnitus began in service.  While there is no contemporaneous documentation of tinnitus in service, the Veteran was exposed to noise in service, and the Veteran is competent to describe tinnitus.  

As the Veteran's lay statements are competent and credible with regard to noise exposure in service and in describing tinnitus in service and since service, which is capable of lay observation, as tinnitus is a simple medical condition, and as the Veteran is competent to offer an opinion on a simple medical condition, the Veteran's lay opinion that current tinnitus is related to noise exposure in service is competent evidence, and as all the elements of service connection have been met, and service connection is warranted.


ORDER

Service connection for tinnitus is granted.


____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs