Citation Nr: 1339133 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 12-22 930 ) 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 Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from October 1990 to August 1999 and from April 2008 to April 2009. This decision comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT Competent and credible evidence establishes that the Veteran has tinnitus as a result of his active service. CONCLUSION OF LAW Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim of entitlement to service connection for tinnitus. No further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); 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). Analysis The Veteran asserts that he has tinnitus as a result of head trauma sustained in active service. He reports that in December 2008, while deployed in Afghanistan, he fell off a ladder while working in maintenance and hit the right side of his head. The Veteran reports that he has experienced tinnitus since his fall in active service. A review of the STRs of record is negative for treatment for or a diagnosis of tinnitus, or treatment for a fall and subsequent head injury while the Veteran was in active service. An April 2009 post-deployment assessment is similarly negative for any indication of a head injury or tinnitus. However, within a month of his April 2009 service discharge, the Veteran had a positive traumatic brain injury (TBI) screen. During a May 2009 a TBI consultation he reported that he experienced a fall in service, and had exposure to several improvised explosive device (IED) blasts. Specifically, he reported that during his deployment he fell and hit his head on a hard surface, and that he has had decreased hearing in his right ear and headaches since the fall. He provided a similar history when his hearing was examined in July 2010. In August 2010, the Veteran was afforded a VA TBI examination. The Veteran reported that while deployed in Afghanistan he was working as a maintenance man. The Veteran reported that in December 2008 he fell off a ladder and landed on the right side of his face. The Veteran admitted that he "didn't think anything about it at the time." The Veteran reported that he began to notice headaches, blurred vision in his right eye, decreased hearing in his right ear, and light sensitivity after returning home in April 2009. The Veteran also reported experiencing tinnitus in his right ear. In a July 2012 addendum, VA audiology examiner opined that the Veteran's tinnitus was less likely as not caused by or a result of military noise exposure because the Veteran stated that his tinnitus started after a head trauma. Then, in an August 2012 addendum, the VA audiology examiner clarified that it was less likely as not that the Veteran's tinnitus was a result of acoustic trauma in service because there was no evidence that the Veteran suffered acoustic trauma during service, and the Veteran did not correlate his tinnitus onset to military noise exposure. No opinion was made with regard to the likelihood of whether the tinnitus could be related to the alleged head injury or IED explosions. The Board finds the VA opinion inadequate. Although the VA audiology examiner provided multiple opinions as to the etiology of the Veteran's tinnitus, none of the opinions addressed the Veteran's primary contention, that his tinnitus was a result of a head injury sustained in active service. The VA audiology examiner noted that the Veteran did not have a TBI, but did not provide an opinion as to whether the Veteran's tinnitus is as likely as not related to the head injury he sustained when he fell off a ladder in active service. Further, the VA examiner's statement that there was no evidence that the Veteran "suffered acoustic trauma during military service" is contradicted by the Veterans repeated statements that he experienced acoustic trauma as a result of several IED blasts and weapons fire. Therefore, as the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). He is also competent to report a fall and head injury that occurred during active service, and that his tinnitus occurred proximate thereto. Moreover, aside from his denial of experiencing ringing in the ears in April 2009, the Board finds the Veteran to be credible. He has consistently reported the in-service incident and his subsequent symptoms in treatment records and VA examinations following his separation from active service. In sum, the Veteran experienced a fall and head injury during active service. The Veteran reported that he first experienced tinnitus after his head injury while in active service, and that he has continued to experience tinnitus since that time. He has been found competent to make this report and these statements have been found credible by the Board. There is no medical evidence of record indicating that his tinnitus is not related to his active service. Accordingly, the Board finds that the preponderance of the evidence is in favor of the claim and entitlement to service connection for tinnitus is granted. 38 U.S.C.A. § 1507 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs