Citation Nr: 1338450 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-13 417 ) 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: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Brittany Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The September 2010 rating denied the Veteran's claim of service connection for tinnitus. The Veteran filed a timely Notice of Disagreement in September 2010. The RO then furnished the Veteran a Statement of the Case in April 2012, and the Veteran filed a Substantive Appeal, Form 9, in May 2012. The Board notes that there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including VA medical records dated from April 2002 to April 2012, are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. The Board notes that there is no paperless, electronic VBMS claims file associated with the Veteran's claim. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2013)). In light of the favorable decision as it relates to the issue of entitlement to service connection for tinnitus, any error by VA in complying with the requirements of VCAA is moot. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for tinnitus on a direct basis. He asserts that he has experienced tinnitus since his service in Vietnam. Specifically, he alleges that he incurred tinnitus in his duties as a light weapons infantryman in service. He reports that the onset of the tinnitus occurred in 1968 when he suffered a perforated tympanic membrane of his left ear after a 175 mm cannon went off while he was standing next to it. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). This provision does not establish a presumption of service connection. Rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both of those inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997). Service personnel records show that the Veteran received the Combat Infantryman Badge, which is indicative of combat. Therefore, the Board finds that the combat presumption applies in this case. Furthermore, the Veteran's military occupational specialty was as a light weapons infantryman. The Board notes that noise exposure is consistent with the duties and circumstances of being an infantryman, as well as with the circumstances and conditions of combat. Additionally, service treatment records corroborate the Veteran's assertions that he suffered an ear injury while in service. Records dated September 1968 describe the injury in detail. The Veteran was standing near a 175 mm cannon when it went off. Shortly after the event, the Veteran reported a watery discharge from his ear and noted decreased auditory acuity bilaterally. The physician diagnosed the Veteran with a perforated tympanic membrane of his left ear and a middle ear infection. Given all of the evidence cited above, the Board concedes the occurrence of the in-service acoustic trauma. The Board notes, however, that service treatment records are otherwise negative for complaints, diagnoses, or treatment for any other ear problems or tinnitus, specifically. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). An April 1970 VA examination indicates that the Veteran complained of a ringing in the left ear, which was mostly noticeable at night. He stated that at times he could not hear well out of the left ear. The Veteran denied any ear or hearing trouble prior to service. The physician diagnosed the Veteran with continuous and symptomatic tinnitus, noting that the symptoms of the disability are subjective, but pointing out that the Veteran gave a "good story" regarding its pathology. The physician also indicated that the tinnitus could have been caused by blasts that injured his left ear while in service. VA treatment records dated April 2002 through April 2012 indicate a consistent diagnosis of tinnitus. Consistently throughout the VA records, the Veteran contended that his symptoms of tinnitus had been present since 1968 when he experienced the acoustic trauma that resulted in a perforated tympanic membrane in his left ear. In February 2010, the Veteran was afforded a VA audiological examination. The Veteran described to the examiner the incident that caused the perforated tympanic membrane in his left ear. He also stated that he had a mortar land within 25 feet of him on two occasions. The Veteran also reported firing M16s and 79 grenade launchers while serving as a light weapons infantryman. The examiner noted that post military, the Veteran had no occupational and recreational noise exposure. At that time, the examiner diagnosed the Veteran with tinnitus. The Veteran reported that the onset of the tinnitus symptoms occurred in 1968 and that they have "gradually gotten worse over the years." The examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure. The examiner based his opinion on clinical expertise, a review of the claims file, and The Institute of Medicine Study (2005) entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus." The examiner noted that the claims file indicated that the Veteran had normal hearing bilaterally upon entrance and separation from military service. The examiner opined that the Veteran's tinnitus was not related to his military experience based on the lack of any complaint of tinnitus within the service records and the lack of any service-related noise-induced hearing pathology for which tinnitus could be medically linked. In August 2010, the Veteran was afforded a VA examination in connection with his tinnitus claim. The examiner conducted a claims file review, including service treatment records, and he specifically noted the ear injury from 1968. The Veteran reported that he had a "very little ringing" in his left ear that began after his tympanic membrane perforation. He reported that it had gotten worse gradually over the years and had been constant for the past 1-2 years, with fluctuating intensity. The Veteran also reported exposure to heavy weapons noise and indicated that he could not remember whether or not he had utilized hearing protection. The examiner noted the Veteran's combat service and conceded acoustic trauma. The Veteran worked as a police officer for 15 years after military service, where he was exposed to gunfire on firing ranges with the use of ear protection. Additionally, the Veteran reported ten years of occupational noise exposure as an electrician, where he worked with saws and electric drills, without the use of ear protection. Finally, the Veteran reported a history of recreational noise exposure, including drills, saws, lawn mowers, and chainsaws. He denied the use of hearing protection in recreational activities except while working with chainsaws. The examiner reaffirmed the tinnitus diagnosis and opined that it was less likely as not caused by or a result of in-service noise exposure from combat during military service. The rationale for the examiner's opinion was that the Veteran reported a history of occupational noise exposure both before and after military service. The examiner discussed the Veteran's acoustic trauma, which occurred in 1968, and explained that there was nothing in the records to indicate that the Veteran suffered tinnitus symptoms following that incident. He further noted that the Veteran suffered hearing loss at that time, but that his hearing was found to be normal for both ears at discharge, and the Veteran did not have any additional complaints of hearing disturbances or tinnitus in his service records. The Veteran submitted a statement with his September 2010 Notice of Disagreement. He argued that while it appeared his claim had been denied based on his former occupation as a police officer, hearing protection had been used any time he was required to fire his service revolver. He reiterated that he had reported this during his VA examination. In May 2012, the Veteran submitted another statement with his Form 9. In it, he conceded that he did not make specific complaints about tinnitus while on active duty in Vietnam, but opined that "not many Vietnam veterans would have." He went on to state, "[w]e were ready to come home and did not want anything keeping us in that god forsaken country any longer tha[n] we had to be." The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, a lay person is competent to provide an opinion on tinnitus. Thus, the Board has considered the Veteran's assertion that the tinnitus was incurred while in service. The Board finds the Veteran's statements in his VA treatment records and VA examinations, his September 2010 statement, and his May 2012 statement regarding the onset of his tinnitus to be competent and credible. There is nothing of record to diminish the Veteran's credibility in this regard. In addition, there is no evidence that the VA examiners in February or August 2010 took into account the VA examination from April 1970, which represented the Veteran's initial tinnitus diagnosis. The Board notes that this diagnosis was made within the first year of the Veteran's discharge from service, and that at that time, the Veteran attributed the tinnitus symptoms to the acoustic trauma he suffered in 1968. Therefore, the Board affords less probative weight to the VA opinions that stated the Veteran's tinnitus was less likely as not due to his in-service acoustic trauma. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Veteran's claim is bolstered further by the continued discussion of his tinnitus symptoms in VA treatment records dated from April 2002 until April 2012. Finally, the Board notes that, given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on the onset and duration of tinnitus. Weighing the above evidence, the Board finds the statements of the Veteran to be reliable in this case, as the evidence of record also fails to demonstrate that the Veteran's statements are not credible. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b). The claim is granted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs