Citation Nr: 1339870 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-02 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from May 1988 to August 1988 and September 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from an October 30, 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The file is now in the jurisdiction of the RO in New York, New York. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDING OF FACT The Veteran's current tinnitus first manifest during his service and is the result of noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.304 (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, 1131; 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). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, it is necessary to establish a link between any current tinnitus and an event or incident of active service in order for service connection to be granted. With disability compensation claims, the Board is 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). 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 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. The Veteran is seeking entitlement to service connection for bilateral tinnitus, which he has asserted is the result of noise exposure during his active military service, including noise from M-1 Abrahams and Bradley tanks. The Veteran has reported that he drove tanks and worked on generators in his duties as a material storage and handling specialist. The Veteran has reported no noise exposure outside of service, which is consistent with his post-service history as a businessman. The Veteran asserts that he experienced tinnitus during active service and it has persisted to the present time. There is no indication in the Veteran's service treatment records that the Veteran complained of tinnitus in service. While some hearing loss is noted in the Veteran's June 1991 audiological evaluation, the Veteran has contended that he was in denial about his condition at the time and that his primary concern was returning home. VA audiological examinations of January 2006 and May 2007 state that the Veteran denied tinnitus. However, these audiological examinations at that time were being given in connection with the Veteran's claim for bilateral hearing loss. Further, the Veteran maintains that he was unaware of what tinnitus meant during these examinations and that the ringing in his ears had become so common over the prior 15 years that he failed to report it during the examinations. This assertion has been consistent from the filing of his claim forward, and there is no reason to doubt the veracity of the statement. The Board finds that the Veteran is a credible historian. As a layperson, the Veteran is competent to report on that which comes to his senses. See Jandreau at 1376. With respect to addressing matters such as diagnosis and etiology, if the condition is "simple" in nature, such an assessment can be made without a corresponding medical opinion. See also Barr at 303. Tinnitus is, essentially, a ringing in the ears, and it is something that the Veteran is uniquely qualified to perceive and assess. His accounts of tinnitus are, as noted, credible, and the Board does not doubt that the Veteran was confused about the terminology (and that he had grown accustomed to the ringing in his ears) during the prior VA examinations. The Veteran served in a noisy environment, and the circumstances of service are thus not of the sort to raise doubt with respect to his allegation of tinnitus. Further, he is competent to make a current diagnosis of tinnitus as a layperson, and to report that his disorder began in active service. There is nothing in the record to dispute the Veteran's contentions in this regard. Accordingly, the credible and competent evidence of record establishes that the Veteran's current tinnitus first manifest during his service after experiencing tank-related noise exposure. As such, service connection is granted. ORDER Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs