Citation Nr: 1340772 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-11 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 2000 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decisions of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). This appeal initially included the additional issue of service connection for hearing loss. Following the issuance of the April 2012 statement of the case (which included the issue of entitlement to service connection for hearing loss) the Veteran's May 2012 VA Form 9 (Substantive Appeal) limited his appeal to the issue of service connection for tinnitus. Further, the Veteran disagreed with the August 2010 rating decision with granted service connection for PTSD rated 10 percent; he sought an increased rating of 30 percent. An April 2012 rating decision granted an increased rating of 30 percent for PTSD. Accordingly, the issues of service connection for hearing loss and an increased rating for PTSD are not now before the Board. FINDING OF FACT It is reasonably shown that the Veteran has tinnitus which began in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 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 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants service connection for tinnitus, there is no reason to belabor the impact of the VCAA on the matter, since any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed. 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). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 381 F.3d 1313 (Fed. Cir. 2009). 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 (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary when the determinative question is one requiring medical knowledge. Id. The Veteran's DD 214 shows that his military occupational specialty (MOS) was heavy equipment operator. His service treatment records (STRs) include a June 2001 audiometry report which notes that the Veteran was routinely noise exposed. The STRs are silent for any complaints, findings, treatment, or diagnosis of tinnitus. Copies of letters written by the Veteran during his deployment state that he was exposed to a grenade explosion. VA outpatient treatment records from 2004 to 2009 are negative for tinnitus. In an October 2009 statement, the Veteran reported that he had always "thought the that the ringing in [his] ears was nothing or wasn't covered by VA" until he found out it had a name and began reporting it to his VA physician. On November 2009 VA PTSD examination, the Veteran reported running over an IED (improvised explosive device) while using a road grader in Kuwait. The IED detonated (blowing the blade off the machine) and caused ringing in his ears. On December 2010 VA audiology examination, the Veteran reported constant left ear tinnitus which began 3-4 years prior. The examiner noted the Veteran's history of noise exposure in service as a heavy equipment operator and due to explosions. The examiner opined (without adequate explanation of rationale) that the Veteran's tinnitus is less likely than not caused by his military service. The February 2013 Informal Hearing Presentation notes that the Veteran "has had ringing in his ears since detonating a mine in Iraq. The explosion blew heavy blade off the road grader that he was driving and a piece of shrapnel hit his flack jacket. He had immediate ringing in his ear and it continues at the present time." Given the Veteran's service as a heavy equipment operator and notation of routine noise exposure in the STRs, it is shown, and not in dispute, that he was exposed to noise trauma in service. As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and its presence has been reported by the Veteran and acknowledged by VA medical care-providers, it is also shown that he has tinnitus. What remains necessary to substantiate his claim of service connection for tinnitus is evidence of a nexus between such disability and his service/exposure to noise trauma therein. One method of establishing nexus (and service connection) is by showing inception of the disability for which service connection is sought during service. See 38 C.F.R. § 3.303(a). The Veteran alleges his tinnitus began in service and has persisted since. As his service medical records do not note tinnitus, and the Board must look to the other medical and lay evidence of record pro and con in this matter. The fact that tinnitus was not noted in the STRs does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. Against the Veteran's claim is the December 2010 VA audiology examination report, wherein he reported a 3-4 year history of tinnitus (thus, two years after service discharge at the earliest). In support of his claim are his statements prior to and after the December 2010 VA examination that he has had tinnitus since service. Upon close consideration of the entire record the Board finds that the Veteran's account prior to and after the December 2010 VA examination report of onset of tinnitus in service and continuity since is reasonably shown to be credible. He has fairly consistently maintained (with one notable exception, which is explained by his October 2009 statement that he thought it was "nothing") that his tinnitus began in service, and has persisted. Resolving remaining reasonable doubt in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus became manifest in service and has persisted since. The requirements for establishing service connection for tinnitus are met. Service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs