Citation Nr: 1339287 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-02 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In October 2011, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran has a current tinnitus disability that began in service. 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. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Considering the pertinent evidence in light of the governing legal authority, the Veteran's claim for service connection must be granted. The Veteran contends that he has tinnitus that was the result of exposure to very loud noise during his period of service. During his October 2011 Board hearing, the Veteran testified that he has had tinnitus for many years, that he was intensely exposed to extremely loud noise for approximately three months during his period of service when operating eight-inch howitzers with no hearing protection, and that he had had ringing in his ears during hearing tests administered since 1970, but never reported the ringing in his ears. At the time of a January 2011 VA examination, he reported that he first noticed ringing in his hears after returning home from service. While service treatment records do not reflect any indication of tinnitus, service personnel records confirm that, during his period of service in Vietnam, the Veteran was a field artillery cannoneer in an artillery battalion. The Veteran also submitted photographs of himself during this period of service on a tank next to a cannon. Therefore, the Board finds that the Veteran's assertions of exposure to very loud noise in service are credible. Also, in a June 2008 letter, the Veteran's private doctor, Dr. L.B., opined that there was a very high probability that the Veteran had current hearing loss as a result of his service as an artillery gunner; in a February 2009 rating decision, the RO granted service connection for bilateral hearing loss based on such in-service exposure and the opinion of Dr. L.B. Given this, Board also finds Veteran's assertions of having tinnitus since his period of service to be credible. The Board notes the opinions of March 2010 and January 2011 VA audiological examiners that the Veteran's tinnitus is not related to his period of service. Both opinions were based on the fact that the Veteran was noted to have denied tinnitus during private treatment in February 2002, June 2004, and December 2005, and on VA audiological examination in September 2008. While during these instances of private treatment the Veteran was noted to have denied tinnitus, along with other symptoms such as vertigo, otalgia, and cephalgia, such examinations were not audiological and were in connection with medical conditions not related to the Veteran's hearing. Also, on September 2008 audiological examination, while it was noted that there was no history of tinnitus and that the Veteran "did not report tinnitus as an issue" during the examination, there is no statement by the examiner that the Veteran affirmatively denied having tinnitus. Moreover, in VA treatment since June 2010, during his January 2011 VA examination, and during his October 2011 Board hearing, the Veteran asserted that, in ever previously denying tinnitus, he did not understand the meaning of the word "tinnitus," and had originally confused it with the word "tendonitis." While the record may to an extent call into question the continuity of a constant tinnitus condition since the Veteran's period of service, given the above, the Board finds that the evidence pertaining to whether the Veteran's current tinnitus began in service is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that current tinnitus began in service. Accordingly, the claim for service connection for tinnitus must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Finally, as provided for by the Veterans Claims Assistance Act of 2000, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs