Citation Nr: 1518464 Decision Date: 04/29/15 Archive Date: 05/05/15 DOCKET NO. 13-15 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board notes that the Veteran's claim for service connection for tinnitus was initially denied in an October 2010 rating decision. However, the finality of the October 2010 rating decision is not at issue here as relevant, additional evidence was received in February 2011, which consists of a VA examination report addressing the etiology of tinnitus, within one year of issuance of the October 2010 rating decision. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). On these facts, the appeal as to service connection for tinnitus is appropriately considered as pending from the claim for service connection dated in January 2010 and the Board herein reviews the claim on a de novo basis. The Board further observes that the June 2012 rating decision also denied service connection for hearing loss. The Veteran entered a notice of disagreement later in June 2012 and a statement of the case was issued in April 2013; however, he limited his May 2013 VA Form 9 to the issue on the title page. Therefore, as there is no timely substantive appeal regarding such matter, the issue of entitlement to service connection for hearing loss is not properly before the Board. In his May 2013 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. Thereafter, he was advised in an August 2013 letter that his requested Board hearing had been scheduled for September 2013. Thereafter, he failed to appear for his scheduled Board hearing; however, such correspondence was sent to an incorrect address. Even so, the Board finds no prejudice to the Veteran in proceeding with a decision at this time as the Board grants his claim in full and, as such, the outcome is entirely favorable to him. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of VA treatment records dated from December 2009 to December 2012, which were considered by the agency of original jurisdiction (AOJ) in the April 2013 statement of the case, and a January 2015 Appellant's Brief submitted by the Veteran's representative, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus had its onset during his military service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for tinnitus constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. However, the provisions of 38 C.F.R. § 3.303(b) provide alternate means of establishing service connection. Under that regulation, if a chronic disease listed in 38 C.F.R. § 3.309(a) is shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) (i.e., there is a reliable diagnosis of the chronic disease in service, or during the presumptive period, not subject to legitimate question) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. 2013). The regulation further provides that if evidence of a chronic disease is noted during service (or during the presumptive period), but the condition is not, in fact, shown to be chronic in service, or if the diagnosis of chronicity can be legitimately questioned (i.e., when the fact of chronicity in service in not adequately supported), service connection for chronic disease can nevertheless be established by credible evidence of continuity of symptomatology after discharge. Id. In such a situation, the evidence of continuity of symptomatology establishes the link, or nexus, between the current disease and service, and "serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 708 F.3d at 1336. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, the Veteran reports experiencing ringing in the ears. See January 2010 claim, February 2010 VA outpatient treatment record, and November 2011 VA examination report. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether or not the Veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran has offered competent and credible descriptions of tinnitus, the Board finds that he has a current diagnosis of such disorder. The Board further finds that the Veteran competently reported that he was exposed to noise in service while he worked as a weather observer on a flight line. The Veteran has provided his own personal statements regarding noise exposure in service as well as a statement from a fellow service member, confirming the same. Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In this case, the Veteran's DD-214 indicates that his military occupational specialty was "weather observer." The Veteran's fellow service member, D.S., explained that he and the Veteran were weather observers together and worked 24-hour shifts together every three days for approximately three years. D.S. reported that the weather office was located in a hanger which housed two squadrons of fighter jets and was located directly on the flight line. D.S. also stated that the weather instruments were located approximately 50 yards from the runways and that every 30 minutes, he and the Veteran were required to walk to and from the weather instruments to update their weather observations for the pilots. He further indicated that they were not provided hearing protection during their bi-hourly transition to and from the weather instruments. D.S. reported that they frequently observed jets departing and landing only 50 yards away, all without wearing hearing protection. He also stated that the noise of the jets departing and landing would greatly amplify in the office as the hanger doors were open and the jet engine noise would echo throughout the hanger and office. The Board finds the Veteran and his buddy's statements to be credible as they are consistent with each other and the evidence of record. Moreover, the Board has no reason to doubt the veracity of their statements. Therefore, the Board finds that the Veteran and his fellow service member have competently and credibly reported that the Veteran was exposed to aircraft noise while performing his duties on the flight line. Consequently, the remaining inquiry is whether the Veteran's current tinnitus is related to such in-service noise exposure. In this regard, the Veteran underwent VA audiological examinations in February 2011 and November 2011; however, both VA examiners indicated that they could not determine the etiology of the tinnitus without resort to speculation. As such, the Board views the VA examination reports as non-opinions and affords the examiners' reports no probative value. In Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382. However, service connection may also be granted based on continuity of symptomatology of a chronic disease under 38 C.F.R. § 3.309(a), despite the absence of a medical nexus opinion linking the present disability to the in-service noise exposure. In this regard, tinnitus is recognized as a chronic disease under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, No. 13-0540 , --- Vet.App. ----, 2015 WL 510609 (Feb. 9, 2015). Thus, service connection may be granted on the basis of continuity of symptomatology even if there is no medical evidence of a nexus between the in-service noise exposure and the Veteran's current tinnitus. In this case, the Board acknowledges that tinnitus was not explicitly diagnosed during service or within the applicable presumptive period. See 38 C.F.R. § 3.307(a)(3). Nevertheless, the record contains credible evidence of continuity of tinnitus symptomatology beginning during service and continuing since discharge. Specifically, in his January 2010 claim form as well as when seeking outpatient treatment, the Veteran consistently reported ringing in his ears since service, with a reported onset date in 1986 or 1987. Furthermore, at his February 2011 and November 2011 VA examinations, he indicated that he had experienced tinnitus since 1986, i.e., during active duty. As he was discharged from service in 1987, the Board finds his reports of onset date as beginning in service. In this regard, the Board has no reason to doubt the veracity of the Veteran's statements regarding the onset of his tinnitus and the continuity of pertinent symptomatology as he has consistently pinpointed the onset date of tinnitus in 1986 or 1987 and reported a continuity of symptomatology since such time. It light of the foregoing, the Board resolves all doubt in favor of the Veteran and finds that tinnitus had its onset during his military service. Consequently, service connection for such disorder is warranted. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs