Citation Nr: 1340158 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-18 081 ) 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. Jose, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri denied service connection for tinnitus. In September 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in June 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2012. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has tinnitus, and competent, probative opinion on the question of whether the Veteran's current tinnitus is etiologically related to in-service noise exposure indicates that there is as likely as not such a relationship.. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claims for service connection for tinnitus, the Board finds that all notification and development action needed to fairly adjudicate the claims have been accomplished. II. Analysis The Veteran claims that he has tinnitus as a result of serving as a wheeled track mechanic and exposure to tank and rifle fire. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of the claim, the Board finds that service connection for tinnitus is warranted. The Veteran has asserted that during his service, he had significant noise exposure while serving as a wheeled track mechanic. Specifically, the Veteran asserted that while working on vehicles without hearing protection, there were many instances when tanks would fire their weapons near the Veteran and his crew. The Veteran also stated that he was regularly exposed to the noise of rifle fire both with and without hearing protection. The Board notes that there are no complaints of tinnitus in the Veteran's service treatment records and that there are no recorded complaints of tinnitus for 40 years after his discharge. The Veteran was afforded a VA audiology examination in March 2010. The examiner reviewed the claims file and discussed the Veteran's history. In the report, the examiner opined that because the Veteran's years of civilian noise exposure was more likely the contributor toward his tinnitus, it is less likely than not his tinnitus is service connected. In support of his claim, the Veteran submitted a September 2010 opinion from a private physician, in which the physician stated that he examined the Veteran and reviewed the Veteran's discharge documents, personnel file, and all his service medical records. The physician opined that the Veteran's tinnitus is more likely than not related to his military exposure and may have worsened as a civilian. He based his opinion on the Veteran's accounts of noise exposure during and after service. The Veteran stated that during service, he was exposed to loud engine noise, tank fire, and rifle fire with and without hearing protection. He also reported that after service, he was a mechanic for 8 years and the only noise he was exposed to was that of air compressors. After 8 years, he became a mechanical engineer doing design work with no noise exposure. The Veteran also reported no recreational noise exposure. In November 2011,the Veteran was afforded another VA audiology examination. The report indicates that the examiner reviewed the claims file and discussed the Veteran's history. The November 2011 VA examiner opined that the Veteran's tinnitus is not as least as likely as not related to his military service because there were no complaints of tinnitus during service and no complaints for 40 years after discharge. The November 2011 VA examiner provided an addendum opinion in June 2012. In the addendum opinion, the examiner opined that the tinnitus is less likely than not caused by or is a result of military service because there is no in-service documentation of tinnitus or acoustic trauma. The examiner also opined that the tinnitus is not at least as likely as not secondary to or aggravated by his hearing loss. The Board notes, at the outset, that tinnitus, or ringing in the ears, is the type of disability that the Veteran is competent to establish on the basis of his own assertions. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Moreover, assessments of tinnitus are documented in the medical evidence of record. Hence, the current disability for which service connection is sought is shown. The Veteran is likewise competent to report an observable matter, or one perceived within the remaining senses, such as significant in-service noise exposure, the injury in question. Id; see also Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).. Moreover, in this case, the Veteran's allegations of in-service noise exposure appear to be consistent with the circumstances of his military service, and, thus, credible. The Veteran's DD Form 214 reflects a military occupational specialty (MOS) of track vehicle mechanic and that he was awarded an expert badge for the M-16 rifle and a qualification badge as a sharpshooter with the M-14 rifle. It is noteworthy that, in awarding service connection for hearing loss during the pendency of this appeal, in May 2012, the RO conceded the Veteran's in-service acoustic trauma associated with his MOS. The Board finds no reason to question the veracity of the Veteran's assertions in this regard. Furthermore, on the question of etiology of current tinnitus, the Board notes, s indicated above, that the current record includes conflicting opinions regarding whether the Veteran's tinnitus is medically related to his in-service noise exposure. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In addition, a VA examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service, and the examination is inadequate when the examiner does not comment on the Veteran's report of in-service injury and, instead, relies on the absence of evidence in the service medical records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the Board notes that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Board finds that the private physician and VA examiners to be competent professionals who each evaluated the Veteran, provided an opinion within their area of expertise, and gave some rationale for the opinion. Here, however, the VA opinions are not entitled to full probative weight because they do not adequately address the Veterans competent lay statements regarding his in-service noise exposure. Although the March 2010 VA examiner noted the Veteran's assertions of noise exposure to tank fire, he dismissed these statements because the Veteran had no combat experience. The Board points out, however, the Veteran never claimed that his noise exposure occurred during military combat. Additionally, opinions by the November 2011 examiner (to include the June 2012 addendum opinion) do not address the Veteran's assertions of noise exposure during service. Instead, the negative opinions were based on the lack of in-service and post-service medical records documenting acoustic trauma and complaints of the Veteran's tinnitus. See Dalton, 21 Vet. App. 23. The Board accords greater probative weight to the private opinion because the physician considered the Veteran's statements regarding noise exposure during and after service in greater detail than the VA opinions. See Prejean, 13 Vet. App. at 448-49 (2000). In addition to reviewing the Veteran's medical and service records, the private physician based his opinion on the Veteran's statements regarding his exposure to noise prior to service, during service, and post-service. Furthermore, when attributing the Veteran's tinnitus to post-service noise exposure, the private examiner considered the Veteran's statements that he was only exposed to the noise of an air compressor for 8 years and did not have any noise exposure in his current occupation. As this opinion was based on full consideration of the Veteran's documented medical history and lay assertions, and is supported by clearly-stated rationale, the Board finds that it is entitled to full probative weight. As noted, by contrast, neither the March 2010 VA examiner, who attributed the Veteran's tinnitus to post-service noise exposure, nor the November 2011 examiner who also provided the June 2012 negative opinion , considered the Veteran's type of work or noise level exposure in such detail. The Board further notes that while the private examiner's opinion is not definitive, it was written in terms sufficient to apply the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for tinnitus are met. ORDER Service connection for tinnitus is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs