Citation Nr: 1603333 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 11-20 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to March 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issue of whether new and material evidence has been submitted to reopen a claim of service connection for a bilateral hearing loss disability has been raised by the record in an August 2010 claim for benefits, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The competent and credible evidence of record shows that tinnitus is at least as likely as not causally related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303(b), 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the fully favorable decision herein, no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Service Connection Service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Veteran contends that she is entitled to service connection for bilateral tinnitus. The Veteran has reported that she currently has tinnitus, which she is competent to diagnose. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, a current disability has been shown. Concerning the second element, the Veteran has stated that she was exposed to loud noises in service. Specifically, she has stated that she served as a jet engine mechanic at Minot Air Force Base, and as a result was exposed to continuous jet engine noise. These statements are competent, and there is no evidence that they are not credible. Further, while the Veteran's DD-214 is not available, her separation examination notes that she was stationed with a Field Maintenance Squadron (abbreviated "FMS") at Minot Air Force Base. The Board finds that this sufficiently corroborates the Veteran's statements that she worked as a jet engine mechanic and was exposed to significant jet engine noise. As such, the Board finds that the Veteran has noise exposure in service, and therefore an in-service event, injury or disease has been shown. Turning to the third element, tinnitus has been held to be an organic disease of the nervous system, and is thus considered a chronic disease for VA purposes. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). As such, service connection based on continuity of symptomatology is applicable in this case. The Veteran has repeatedly stated in correspondence with VA that her tinnitus had its onset in service and has continued since service. The Veteran is competent to both identify tinnitus as having its onset in service, as it is a lay diagnosable disability, and competent to report that it has been persistent since service. Jandreau, 492 F.3d at 1377; Charles, 16 Vet. App. at 374. The Board notes inconsistencies on two occasions, in that the Veteran endorsed no ear issues on her separation report of medical history and that the November 2008 examiner noted the Veteran reported an onset date of approximately 2003. However, the Board also notes that the Veteran has otherwise been very consistent in her statements submitted directly to VA, as well as her statements to VA medical personnel memorialized in treatment records, that her tinnitus had its onset in service due to working as a jet engine mechanic. As the Veteran has, overall, been very consistent in her statements, the Board finds that these two inconsistencies are not sufficiently significant to render her statements not credible. As her statements are both competent and credible, they are entitled to significant probative weight. Jandreau, 492 F.3d at 1377. The Veteran was provided with VA audiological examinations in November 2008, May 2010, and January 2012. The November 2008 examiner noted that Veteran reported ringing in her ears for about five years, and that while the Veteran's complaints supported a diagnosis of tinnitus, since her hearing was normal the tinnitus was of unknown etiology. No further opinion was provided concerning a potential relationship to noise exposure in service. As such, the opinion is one that essentially indicates that the examiner could not provide an opinion, which is of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The May 2010 VA examiner indicated that no complaints of tinnitus were made at the time of the examination. However, the examiner further indicated, curiously, that tinnitus was not being claimed either. This, coupled with the fact that the examiner noted the chief complaint to be hearing loss (an issue not even on appeal at the time), indicates that the issue of tinnitus may not have been addressed at all or that there was confusion concerning the purpose of the examination. It additionally makes little sense, as the Veteran has argued, that she would complain of tinnitus in May 2008 and July 2008 VA treatment records, as well as during her November 2008 VA examination, and then promptly reverse course and deny the presence of tinnitus. Finally, separate from those factual issues, the examiner did not address or provide an opinion on tinnitus at all, which renders it of no probative value on its own. See id. As such, the Board finds that the findings in the May 2010 VA examination are entitled to no probative weight. Finally, in the January 2012 audiological examination the examiner noted the Veteran reported an onset date of over ten years prior, but did not report a specific event that caused the tinnitus. However, this examiner, while noted that tinnitus was present and the Veteran's statements, also did not provide an opinion concerning the etiology of the tinnitus. Thus this examination is also of no probative value. Id. VA treatment records reflect ongoing complaints of tinnitus since the Veteran established care with VA. Specifically, the Veteran reported a history of chronic tinnitus in May 2008 during a history and physical when establishing care at the local VA community based outpatient clinic (CBOC). In July 2008 she reported experiencing tinnitus with an onset date of "forever" and in June 2010 she endorsed a general history of tinnitus. A January 2012 VA psychiatric examiner noted that, when asked about other medical issue, the Veteran reported on-going tinnitus since working as a jet engine mechanic in the military. Finally, numerous treatment records, most recently in August 2015, note a medical history of tinnitus associated with working as a jet engine mechanic. In short, there are no adequate opinions concerning the etiology of the Veteran's tinnitus of record. The Veteran's lay statements are both competent and credible concerning the continuity of symptomatology since service, and are corroborated by several VA treatment records as well as the factual findings in the VA examination reports. As such, the Board finds that the competent and credible evidence of record supports a finding that the Veteran's tinnitus manifested in service and has been continuous since, and therefore service connection based on continuity of symptomatology is warranted in this case. Fountain, 27 Vet. App. at 271-72; Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs