Citation Nr: 1603384 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-13 927 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to March 1997. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2012 rating decision in which the RO, inter alia, denied service connection for tinnitus. In April 2012, the Veteran filed a notice of disagreement (NOD) with that decision. A statement of the case (SOC) was issued in March 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2013. Notably, in addition to the Veteran's tinnitus claim, he also appealed four other claims that were denied in the March 2012 rating decision. The March 2013 SOC addressed those issues as well, however, on the May 2013 substantive appeal, the Veteran limited his appeal to tinnitus. As such, that is the only issue before the Board at this time. In November 2015, a Board hearing was held before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the electronic file. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. In addition to the VBMS file, there is a separate paperless, electronic (Virtual VA) file associated with the Veteran. A review of the Virtual VA file reveals duplicative evidence of that contained in VBMS. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although service records do not document any specific incident of acoustic trauma, there are competent, credible and probative lay assertions of the Veteran's in-service noise exposure that are consistent with the circumstances of his service; as well as that he began to experience symptoms of tinnitus after in-service noise exposure that have been recurrent to the present. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the favorable disposition of the Veteran's claim for service connection for tinnitus, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished. The Veteran claims that he has tinnitus as a result of in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). If a chronic disease, such as an organic disease of the nervous system, becomes manifested to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1111, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. For the showing of chronic diseases in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the United States Court of Appeals for Veterans Claims (Court) recently held that, with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). In adjudicating a claim for VA benefits, 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of the claim, the Board finds that service connection for tinnitus is warranted. The Veteran served on active duty from November 1985 to March 1997. His DD Form-214 lists his military occupational specialty (MOS) as a Navy Aviator. In his May 2013 substantive appeal, the Veteran stated that his duties as a Navy Pilot exposed him to loud noises on a daily basis. In November 2015, the Veteran submitted a statement from a service member who served with the Veteran who described the circumstances of their service, including exposure to loud noises from the FA-18 planes they both flew. These lay statements concerning the Veteran's in-service noise exposure are consistent with the circumstances of his service, including the duties associated with his MOS. As the Board finds no reason to question the veracity of the Veteran's assertions in this regard, these assertions are deemed credible. Thus, the Board finds that the evidence of record is sufficient to establish the occurrence of in-service injury. As for the matter of a current disability, the Board notes that the Veteran, as a lay person, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring, or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (32nd ed. 2012). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, given the nature of the disability, the Veteran's lay statements are sufficient to establish that he has a current disability of tinnitus. As such, the remaining inquiry is whether there is competent, credible, and probative evidence establishing a medical nexus between current tinnitus and the Veteran's service, to include likely noise exposure therein. During his November 2011 VA examination, the Veteran stated that he had been suffering from problems related to tinnitus during his first deployment in 1990. He stated that he began to notice a ringing in his ears in service while working flying the aircraft. In his May 2013 substantive appeal, the Veteran stated that, although he did not seek treatment in service for his tinnitus, he experienced problems with tinnitus in service and that those problems continued after service. Just as the Veteran's lay statements are sufficient to establish the presence of a current disability, the Veteran is also competent to state that his tinnitus began during service, and that he has continued to experience symptoms of tinnitus from service to the present. Again, as the Board finds no reason to question the veracity of the Veteran's assertions in this regard, they are deemed credible. As discussed above, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence, alone. As noted above, the Veteran was afforded a VA examination in November 2011 to address the nature and etiology of his tinnitus. The examiner opined in an addendum that there were no claims of tinnitus found in the Veteran's claims file, and therefore it was less likely as not that the Veteran's tinnitus was caused by military noise exposure. While the November 2011 VA examiner's etiology opinion has been considered, the Board finds that such opinion is not persuasive, as it was not based on full consideration of all pertinent evidence. In particular, the opinion appears to be based primarily, if not solely, on the absence of documented, contemporaneous complaints of tinnitus, and does not reflect consideration of the Veteran's current assertions as the onset and continuity of his symptoms of tinnitus that the Board has accepted as credible. The opinion is, therefore, accorded little probative weight. The Board points out, however, that the absence of a probative medical nexus opinion is not fatal to the Veteran's tinnitus claim as, given the nature of the disorder, lay evidence may serve as a basis to establish the claim. See Charles, supra; Savage v. Grober, 10 Vet. App. 488, 495-97 (1997). Here, the Board finds that the Veteran's competent and credible assertions as to the onset and continuity of symptoms of tinnitus constitutes persuasive evidence on the question of medical nexus to service, Again, the Board finds no reason to question the veracity of the Veteran's assertions in this regard. In sum, although service records do not document any specific incident of acoustic trauma, there are competent, credible, and probative lay assertions of the Veteran's in-service noise exposure that are consistent with the circumstances of his service, as well as that he began experiencing symptoms of tinnitus after noise exposure in service, and that such symptoms have been recurrent to the present. Collectively, this evidence tends to establish that the elements of in-service injury disease, current disability, and nexus between current disability and service required to establish service connection are met. Accordingly, affording the Veteran the benefit of the doubt on certain elements of the claim, service connection is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs