Citation Nr: 1339910 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-12 109 ) 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 J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran seeks service connection for tinnitus. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's tinnitus manifested as a result of his active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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). Service connection on a direct basis may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). See also Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that a Veteran can establish their claim for disability after separation from service). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide a diagnosis of a simple condition such as tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. Tinnitus is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane)". See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996); See also Kelly v. Brown, 7 Vet. App. 471, 472 (1995). Analysis The Veteran asserts that he was exposed to noise during service and experienced ringing in his ears that started in service which remains present today. In an Informal Hearing Presentation (IHP) submitted by the Veteran's representative, it was argued that the Veteran is competent to give lay testimony regarding his disability, and service connection should be granted based on his lay statements. The Veteran has a disability, in the form of bilateral tinnitus. When examined by VA in November 2010, the Veteran made a current complaint of tinnitus, and the Veteran stated that he had constant tinnitus for both ears, it was described as more noticeable in the right ear. The Veteran described his tinnitus as a "high pitched squeal" and that he first noticed his tinnitus while serving in the military. The Veteran reported that while serving he was standing too close to a piece of artillery when it went off. The Veteran stated that he could not hear for approximately four days, that his hearing returned to normal but that his tinnitus never went away. The Veteran is competent to provide a diagnosis of a simple condition such as tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). Since tinnitus is a subjective condition, the Veteran is also found to be credible regarding his description of his tinnitus. The Veteran has given no reason for the Board to doubt his credibility or the evidence of record. Therefore, the Veteran fulfills the current disability element for service connection. The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. The Veteran stated at his November 2010 exam, that he was a mortar man in an infantry unit, and that he experienced excessive noise exposure from explosions and tube gunnery. The Veteran's assertions are consistent with his military medals and citations, as the Veteran received expert badges for mortars, rifles and .45 caliber weapons. The Veteran also received a Combat Infantryman Badge. The Veteran is competent to discuss his experiences, and exposure to noise, as well his symptomatology of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, competent lay testimony "can be rejected only if found to be mistaken or otherwise deemed not credible." McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The record contains no reason to find the Veteran not credible and therefore the Veteran fulfills the in-service injury element for service connection. In the instant appeal, there is conflicting evidence on the issue of nexus. Specifically, the Veteran contends that his in-service acoustic trauma is the nexus for his tinnitus, and that his tinnitus has existed since service. The Veteran stated in his Statement in Support of Claim that he was a combat infantry man, had exposure to acoustic trauma, and has experienced tinnitus ever since service. In October 2010 the Veteran stated that he was a mortar man in Vietnam and that he had ringing in his ears ever since service. The Veteran also described his tinnitus at his November 2010 VA Audio examination, where he called his tinnitus a "high pitched squeal" and more noticeable in his right ear. On the other hand, a VA audiologist submitted a negative nexus opinion stating that "it is my opinion that the veteran's hearing loss and tinnitus are not as least as likely as not related to his military service." The medical opinion is of little probative weight. The examiner did not offer an opinion regarding the etiology of the Veteran's tinnitus; therefore, there is no negative opinion of record on the question of the relationship between tinnitus and service that weighs against the claim. Furthermore, the VA examiner did not comment on the Veteran's credibly reported symptoms of tinnitus in-service or since service, and did not consider as a factual assumption continuous post-service symptoms of tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate where a VA examiner ignores the veteran's lay statements of an injury/event during service unless the Board expressly finds that no such injury/event occurred). Considering the circumstances of the Veteran's service, he was likely exposed to noise exposure in service. In addition, the Veteran is competent to assert the occurrence of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also 38 U.S.C.A. § 1154(a). Therefore, the Board finds that the Veteran's statements are competent and credible with respect to having been exposed to noise in the military, and having tinnitus in his ears in service which continued after service. The Veteran was able to specify when and what caused his acoustic trauma and was able to discuss his symptoms, specifying the difference in disability, between his left and right ear. The Veteran is found credible, and the Board accepts the Veteran's assertions of in-service noise exposure. In weighing the evidence, the Board finds that the Veteran's statements and lay evidence is more probative than the VA examiner's opinion. The Veteran has submitted lay statements that he currently suffers from tinnitus, has had tinnitus since service, and was exposed to acoustic trauma in the form of artillery while serving as a mortar man, fulfilling the nexus element. The Board finds the medical examiner's opinion of limited probative weight as the examiner did not provide an etiology, nor discussed the Veteran's lay statements regarding tinnitus. Therefore the Veteran's lay statements hold more weight than the VA medical opinion. The Veteran's current disability of tinnitus, with its onset in service, and the causal relationship between the Veteran's current tinnitus and in-service complaints of tinnitus, warrants service connection. Furthermore, since tinnitus is wholly observable by a lay person, and the Board has found the Veteran credible, the requirement of medical nexus is obviated. See Jandreau at 1376-77. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs