Citation Nr: 1518139 Decision Date: 04/28/15 Archive Date: 05/05/15 DOCKET NO. 13-04 059 ) 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from May 8, 1969 to February 28, 1973. This appeal to the Board of Veterans' Appeals (Board) is from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for tinnitus and hearing loss. The Veteran submitted a notice of disagreement in July 2011 and thereafter, in his February 2013 substantive appeal, expressly limited his appeal to the tinnitus issue only. The Veteran testified before the undersigned Veterans Law Judge in March 2015. A transcript of that proceeding has been associated with the claims file. FINDINGS OF FACT The evidence is at least in relative equipoise as to whether tinnitus began during active service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). As the Board's decision to grant service connection for tinnitus is completely favorable, no further action is required to comply with the VCAA and implementing regulations. Service Connection - Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. 3.303(a)(2014). To establish service connection, evidence 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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such as tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service, or in service and any time thereafter. 38 C.F.R. § 3.303(d); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Tinnitus The Veteran asserts that he has tinnitus as a result of in-service acoustic trauma/noise exposure. He has consistently reported that he was exposed to loud noise from steam pipes, generators, and aircrafts (being near the flight line) in his capacity (military occupational specialty/MOS) as a heating systems specialist. He has also endorsed continuous ringing/tinnitus in the ears since service. See, e.g., Hearing Transcript, pp. 6-7; May 2010 Report of Contact; and February 2013 VA Form 9. As an initial matter, the record establishes the presence of tinnitus. In this regard, the Board acknowledges that the Veteran is competent to state that he has had ringing in his ears and when the ringing began. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself); Falzone v. Brown, 8 Vet. App. 398, 406 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Board finds that there is a current tinnitus disability. The Board must next consider whether the Veteran was exposed to acoustic trauma in-service (i.e., in-service incurrence or aggravation of a disease or injury). As an initial matter, a January 1972 service treatment record (STR) does reflect that the Veteran sought treatment for a "funny noise" or clicking in his ears following an ear bleed two months prior. No pathology was found at that time. The February 1973 separation examination is silent as to complaints, treatment or diagnosis of tinnitus or other hearing-related problems. Again, the Veteran has reported that he was exposed to various acoustic trauma while serving in the Air Force. This includes servicing steam pipes along the flight line in Vietnam (Da Nang), as well as well very loud heating units/generators while stationed at Air Base Richards Gabur. The Board notes that the Veteran is competent to report on the types of noises/acoustic trauma he was exposed to in-service; further, the Board finds no reason to doubt the credibility of his statements and testimony concerning noise exposure because they have been consistently reported throughout the record; they are not directly contradicted by any other evidence contained in the record; and they are largely consistent with his MOS. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Based on the above, the Board finds the Veteran was likely exposed to acoustic trauma in-service. The remaining question for consideration here is whether the Veteran's current tinnitus is related to in-service acoustic trauma. In this case, there are two medical nexus opinions of record - a favorable private medical opinion dated in October 2014 and an unfavorable VA opinion dated in August 2010. As for the unfavorable August 2010 VA opinion, the examiner opined that tinnitus was less likely as not due to acoustic trauma in-service. In so finding, the VA examiner acknowledged that the Veteran had been exposed to acoustic trauma during service, but stated that the lack of hearing loss at separation lowered the probability of acoustic trauma being the basis for the tinnitus condition. (Emphasis added). As the VA examiner did not consider the in-service findings suggestive of tinnitus (see January 1972 STR), or the Veteran's competent/credible reports of ongoing tinnitus symptomatology since service, and because the opinion was largely based on the presence/absence of hearing loss during service, the Board finds that the August 2010 VA opinion is of limited probative value. See Dalton v. Peake, 21 Vet. App. 23 (2007); see also Prejean v. West, 13 Vet. App. 444, 448 (2000). Conversely, the October 2014 the private examiner expressly considered the Veteran's reports of acoustic trauma from aircraft and generators, as well as his statements regarding onset of tinnitus in-service and continuity thereafter, and opined that tinnitus was related to military noise exposure. This opinion was based on case history and onset of tinnitus. The Board finds the private opinion to be highly probative as the examiner considered the nature of the Veteran's tinnitus, history, and relevant longitudinal complaints in proffering the opinion. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Therefore, considering the totality of the evidence, including January 1972 STR showing complaints of "funny noise" and clicking in the ears, the Veteran's competent and credible lay statements/testimony concerning onset and continuity of tinnitus, the probative private medical opinion dated in October 2014, and the less probative VA opinion dated in August 2010, the Board finds that the evidence is at least equipoise on the question of a nexus between service and the current tinnitus. Resolving reasonable doubt in the Veteran's favor, the claim of service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs