Citation Nr: 1716331 Decision Date: 05/15/17 Archive Date: 05/22/17 DOCKET NO. 15-04 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1964. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas that denied the Veteran's claims for service connection for tinnitus. In December 2016, the Veteran appeared at a Board hearing at the RO before the undersigned. A transcript of the hearing is associated with the claims file. The undersigned held the hearing record open for 60 days so that the Veteran could submit additional evidence. Additional evidence was received from the Veteran for which he did not request initial RO review and consideration. Hence, the Board may consider it in the decision below. See 38 U.S.C.A. § 7105 (e) (West 2014). The Board notes the Veteran has an outstanding claim for bilateral hearing loss. However, as an appeal has not yet been perfected on the claim, it is not before the Board at this time. Finally, the Board notes that the Veteran filed a Freedom of Information Act request in September 2016 that has not yet been responded to by the RO. However, the Board is granting the claim decided herein, and this represents a full grant of the issue on appeal. Thus, the Board finds no prejudice to the Veteran in adjudicating the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran has current tinnitus that began during active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION A veteran is entitled to compensation for a disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). 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. 38 C.F.R. § 3.303(d). Certain chronic diseases, including tinnitus, as an organic disease of the nervous system, 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. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or during the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. §3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). The record shows a current diagnosis of tinnitus. See August 2010 Dr. S.H. Progress Note; see also December 2016 Dr. K.B. Letter. The remaining questions are whether there was a disease or injury in service and whether there is a link between the current disabilities and the in-service disease or injury. The Veteran's enlistment and separation medical records indicate ear, nose, or throat trouble. See May 1961 Report of Medical History; see also May 1964 Report of Medical History. Unfortunately, a description of these issues is not included in the Veteran's service treatment records. Private audiology records obtained from the Veteran's civilian employer indicate that the Veteran reported tinnitus symptoms as early as October 1993. See October 1993 Hearing Exam. The Veteran continued to report symptoms of tinnitus to his employer in May 1995 and June 2000. See May 1995 Hearing Exam; see also June 2000 Hearing Exam. Private treatment records from August 2010 indicate the Veteran sought treatment for tinnitus without success. See Dr. S.H. Progress Note. He reported chronic tinnitus for many years with several unsuccessful treatments. See id. The Veteran also reported that the tinnitus did not change in consistency. See id. During a September 2012 VA Examination, the Veteran reported recurrent tinnitus that began in the late 1960s. However, the claims file was not available for the examiner to review, and he was unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus. The same examiner provided an addendum opinion in October 2012 after reviewing the Veteran's claims file. The examiner opined that the Veteran's tinnitus was less likely as not a result of noise exposure during the military. The examiner noted that no complaints of tinnitus were found in service treatment records and there was no compelling evidence found to suggest tinnitus was due to military noise exposure. During the December 2016 Board Hearing, the Veteran stated that he was a Howitzer driver, and as such, continually exposed to loud noises while in service. He stated that he stayed in the driver's seat of the Howitzer as it was fired so that he would be ready to reposition the gun. See id. Additionally, the Veteran indicated that he wore absolutely no hearing protection the entire time that he performed his duties as a Howitzer driver. See id. He indicated that the ringing in his ears began periodically while he was in service and that he didn't see the medics as he assumed that it was just a fact of being a part of the military. See id. The Veteran stated that the ear ringing continued throughout the remainder of his service until the present time. See id. He sought treatment during the 1970s and 1980s from private treatment providers but was told there was no treatment available. See id. He indicated that he was not exposed to loud noise after service as he was employed as a draftsman. See id. 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether it is credible. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report symptoms of tinnitus. Additionally, his statements are determined to be credible. Based on the evidence of record including the credible statements provided by the Veteran, he spent the majority of his military career as a Howitzer driver, a setting in which he was exposed to considerable acoustic trauma. Shedden v. Principi, 381 F.3d at 1167. His exposure to acoustic trauma in service is conceded. In a December 2016 letter, Dr. K.B., a private practitioner, opined that after physical examination, review of the Veteran's military service records, and a personal interview, it was as least as likely as not that the his chronic and constant tinnitus was caused by or contributed to by noise exposure during military service. Dr. K.B.'s opinion was based on the fact that the Veteran was exposed to excessive noise levels while in service without benefit of adequate hearing protection, that his job duties had a high probability of noise exposure and that the he stated his tinnitus began while in service. See id. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board finds that both the opinions of the September 2012 VA examiner and the December 2016 private practitioner are probative. Both opinions were based upon review of the relevant medical history and examination of the Veteran and were supported by a reasoned analysis. The evidence is in relative equipoise. With the resolution of reasonable doubt in the Veteran's favor, and without ascribing error to the action by the RO, the Board concludes that service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs