Citation Nr: 1339797 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-10 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to May 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2010, the Veteran and his spouse testified at a hearing before the undersigned at the RO. In a December 2010, the Board denied entitlement to service connection for bilateral hearing loss disability and tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court endorsed a Joint Motion for Remand (JMR) vacating the Board's denial of the Veteran's claims and remanding the matter for further proceedings. In November 2011, the Board remanded the claims to the Appeals Management Center (AMC) for further evidentiary development. In July 2012, the AMC granted service connection for bilateral hearing loss disability. In November 2012 and May 2013, the Board remanded the claim of service connection for tinnitus to the AMC for further evidentiary development. The claim has been returned to the Board for appellate review. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 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 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 establish the Veteran's entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-7; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). 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 the 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. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A review of the Veteran's service treatment records shows no complaints or findings of tinnitus or ringing in the ears. His separation physical examination dated in May 1946 showed no ear diseases or defects. The Veteran's claim for service connection for bilateral hearing loss and tinnitus received in November 2007 reflects that he reported that his tinnitus and hearing loss began in 1946. Nevertheless, the remainder of the record is replete with reference to the fact that the Veteran reports that he first experienced tinnitus following an ear surgery in 1988. By way of background, the Veteran's Separation from Naval Service form provides that the Veteran served on numerous naval vessels. He testified during the travel board hearing and has submitted statements indicating that while stationed on the U.S.S. Massachusetts, he worked in the engine room which produced very loud noise without hearing protection. He has also indicated that he was exposed to the firing of guns aboard the ship. The Board finds that the Veteran is competent to state that he experienced acoustic trauma in service. See generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is also found to be credible in these statements. Private employee audiometric records dated from August 1976 through March 1989 show that the Veteran's hearing became progressively worse but to not show tinnitus. A December 1983 private treatment note indicates that the Veteran had surgery on his left ear in 1983. A March 1989 private treatment note shows that the Veteran had a second left ear operation in July 1988. In March 2008, the Veteran was afforded a VA examination in connection with his appeal. The Veteran complained of constant moderate high-pitched ringing in his left ear and decreased hearing acuity. The examiner noted his history of left ear infections and the two left ear surgeries. The examiner opined that the Veteran's tinnitus was not likely related to his military service. The examiner supported his opinion by pointing to the fact that the Veteran first sought treatment for hearing problems in 1981 and did not start complaining of tinnitus until after his first ear surgery in 1988. As noted, with the exception of what he reported on the initial claim form, the Veteran testified and has submitted statements indicating that he was exposed to in-service acoustic trauma but that he started experiencing ringing in his ears after his ear surgery in 1988. The Board finds that his multiple consistent statements as to the date of onset of tinnitus in 1988 establish that this is the actual date of onset. The Board highlights that the Veteran is competent to state that he has tinnitus and when it was first noted. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board again observes that the Veteran is competent to state that he experienced acoustic trauma in service. See Jandreau, 492 F.3d 1372. He is also found to be credible. In support of his claim, the Veteran submitted an April 2010 letter from his private Ear, Nose and Throat (ENT) physician which indicated as follows: I treated [the Veteran] for an infection behind his ear drum due to a buildup of skin. The buildup of skin happened over a period of many years, as a result of traumatic inner ear damaged. His condition was not treatable with antibiotics and required an operation to clean out the infection to prevent it from moving to the brain. Since he had been hearing through fluid and infection that transferred sound within the ear, [the Veteran] was advised the operation could present tinnitus and a loss of some hearing. He was advised the amount of hearing loss would depend on how much damage was done to the inner ear. In my opinion it is as likely as not [the Veteran's] hearing loss and tinnitus are related to his military service. The Board notes that the record contains treatment records from this provider dated from 1981 that are consistent with the Veteran's statement as to his having ear surgeries. In the joint JMR, it was agreed that the Board did not provide a rationale to conclude that this examiner's opinion was not probative because it did not specifically indicate whether inner ear damage was the result of something that occurred during service or after service. The parties noted that the Board had found that the Veteran was credible as to in-service acoustic trauma. They also point out that, with regard to the Veteran's post-service employment, he explained during his September 2010 hearing before the undersigned that he used hearing protection all the time. In December 2011, the Veteran was afforded a VA audiological examination. An addendum was also rendered in February 2012. Initially, the examining audiologist, who did not review the entire record, opined that tinnitus was less likely as not due to service or service-connected hearing loss. The rationale was that there was no complaint of tinnitus in the record until a 1978 surgery. In February 2012, another VA audiologist reviewed the entire record and again opined that tinnitus was less likely as not caused by in-service noise exposure or service-connected hearing loss. The examiner explained that, "[t]he c-file was negative for complaints of tinnitus. The veteran claims he first noticed it in 1978 following his first surgery which was not related to the military." In a January 2013 opinion, another VA audiologist reviewed the claims folder and opined that the Veteran's tinnitus, which first presented in 1988, was not a result of noise exposure in service or service-connected hearing loss but rather was due to the 1988 surgery. The VA audiologist explained that since the Veteran attributed his tinnitus to his ear surgery in 1988 (or 1978 as reported in a later audiometric notes) and that ear surgery had no relation to military service and the service treatment records were negative for complaints of tinnitus it was the audiologist's opinion that tinnitus was less likely as not caused by service or secondary to service-connected hearing loss. Finally, in June 2013, the same VA audiologist who authored the January 2013 opinion provided the following addendum: The e-folder and CPRS records were available. The c-file was not available. An opinion regarding "whether the veteran's current tinnitus was aggravated by his service connected hearing loss disability" was requested. Upon review of records, the veteran reported onset of tinnitus in 1988 which was 40 years following military service. He specifically attributed the tinnitus to an ear surgery not military noise exposure. The otosurgery was not secondary to any injuries or service connected disabilities from the military. As stated in previous opinions, hearing loss does not cause tinnitus or vice versa. Hearing loss and tinnitus can occur together or can occur separately. In this case, the veteran's condition occurred separately and 40 years apart. One condition does not seem to impact the other condition. It is still this examiner's opinion that it is less likely than not that tinnitus was aggravated by service connected hearing loss or that tinnitus is secondary to service connected hearing loss or that tinnitus was in any way related to military service, as by the veteran's own admission, his tinnitus was attributed to an otosurgery that occurred 40 years after military service. Given the credible testimony of the Veteran and his statements, the Board has found his assertions of ringing in the ears dating back to his 1988 surgery to be credible. The Board notes that the critical issue at this juncture, as pointed out in the JMR, is that the Veteran's private treating ENT stated that the surgery was necessitated by acoustic trauma, or inner ear trauma, that dated to service. This was the basis of the ENT's favorable opinion. The Board finds this opinion to be well-supported and not inconsistent with the aforementioned treatment record. Following the development of the record discussed above, the Board finds that the evidence is at least in equipoise as to whether the acoustic trauma that necessitated the surgery was incurred in service. The subsequent VA medical opinions have not provided any well-supported reasons and bases to conclude that the acoustic trauma that necessitated the surgery was not incurred in service. Nor have they provided any competent opinion to refute the private, treating ENT's opinion that the surgery was necessitated by acoustic trauma. The Board will thus conclude that it was so incurred. As such, the treating ENT's opinion provides an uncontroverted nexus linking the current tinnitus to service. Accordingly resolving the benefit of the doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus are met. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs