Citation Nr: 1342286 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 12-33 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to March 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The record reflects that in a letter received November 2012, the Veteran said she was perplexed by the findings in the June 2012 rating decision and felt it was a case of "unmistakable error." The RO responded by filing a Supplemental Statement of the Case (SSOC) that addressed whether the denial of service connection was based on clear and unmistakable error (CUE). While the Board acknowledges the Veteran's use of the phrase "unmistakable error," the Board finds no indication that the Veteran was intending to file a new claim for CUE with regard to the previous decision. Instead, it appears she was merely asserting her disagreement with the fact that she was denied service connection for her claim for tinnitus. The Veteran did not identify a specific error that was made in the prior decision beyond that she disagreed with the final judgment. In addition, the Veteran gave no indication anywhere else in the claims file that she was intending to submit a claim for CUE. Furthermore, under 38 C.F.R. § 3.105(a), a claim for CUE in a rating decision applies only to a prior rating decision that is final and binding. Under 38 C.F.R. § 3.160(c), the claim for service connection for tinnitus is a pending claim, that is, a claim not finally adjudicated; so the claim is not subject to a revision of grounds of alleged CUE. As such, due to the ambiguity of the Veteran's statement and the fact that the claim is still pending, the Board will proceed to adjudicate the claim on appeal as entitlement to service connection for tinnitus. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT Tinnitus is etiologically related to noise exposure during active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 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). 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 a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 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 Veteran has asserted that she has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has stated that she first experienced tinnitus in active service, and that she was exposed to excessive acoustic trauma from working on and around the flight line. The Veteran's DD Form 214 shows that her Air Force Specialties were instructional system technician and materiel facilities specialist. The Board has found nothing in the record that contradicts the Veteran's contentions concerning her in-service noise exposure. Therefore, the Board finds that the Veteran's reports of noise exposure during active service are both competent and credible. As such, the Board concedes the Veteran's acoustic trauma during active service. A review of the Veteran's service treatment records (STRs) fails to show any complaints of symptoms of tinnitus at any time during her active service. In December 1984, she was given a separation examination where she reported ear, nose, or throat trouble, but did not specify the symptoms she was experiencing. However, in her December 2012 notice of disagreement (NOD), the Veteran stated that her tinnitus had existed since service. Specifically, she stated that her tinnitus started during her three-year assignment to Tyndall Air Force Base, Florida, where she worked on and around the flight line, and she has continued to experience tinnitus since then. The Board notes that the Veteran is competent to report when she first experienced symptoms of tinnitus and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds that based on her assertion that she experienced symptoms of tinnitus since service, the Veteran is credible in this regard. In September 2011, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported experiencing recurrent tinnitus that began while she was in the military. The examiner noted that he was unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation because, at the time, he had not yet received her claims file so he could not review the records. In January 2012, the same examiner provided an addendum opinion after reviewing the Veteran's claims file. The examiner reported that with the presence of hearing loss as early as 1977 and her claim that the tinnitus was first noticed after leaving the military, it was reasonable to conclude that the condition was not related to hearing impairment as it would have been present much earlier in time. Therefore, the examiner opined that it was less likely as not that the Veteran's tinnitus was related to her service. In an additional addendum opinion from June 2012, the examiner further stated that as the Veteran did not "time lock" her tinnitus to her efforts working near aircraft, nor did she admit to tinnitus being related to her pre-existing hearing loss, an opinion of less likely than not was provided. The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 vet. App. 614 (1992). In this case, the Board declines to accept the VA examiner's opinions regarding the etiology of the Veteran's tinnitus, as he did not adequately account for the Veteran's lay statements of onset in service and continuity of symptomatology. In this regard, the Board notes that the VA examiner stated the Veteran's tinnitus was first noticed after leaving the military; however, the Veteran stated several times, including during her September 2011 VA examination, that she first experienced symptoms of tinnitus while on active duty. Therefore, the September 2011 VA medical opinion and addendum opinions from January 2012 and June 2012 are inadequate upon which to base a denial of entitlement to service connection. The Board notes that 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 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran is competent to identify tinnitus and her statements of such have been found credible, as they have been consistent. In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service. The Veteran has competently reported that she has experienced tinnitus since active service and that she has continued to experience such since her separation from active service, and these statements have been found credible by the Board. There is no persuasive medical opinion of record indicating that the Veteran's currently diagnosed tinnitus is not related to her noise exposure in active service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs