Citation Nr: 1751925 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-05 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 2002 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2017, the Veteran testified before the undersigned Veterans Law Judge; a transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's assertions of in-service noise exposure as a result of his duties as a hospital corpsman are competent and credible, and are consistent with the circumstances of his service. 2. The Veteran has credibly asserted that he began experiencing tinnitus during service, and that these symptoms have continued to the present. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 101, 1110, 1131, 1154(a) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board's decision with regard to the Veteran's claim for service connection is completely favorable, no further action is required to comply with the VCAA and implementing regulations. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required 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 or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). On February 9, 2015, the United States Court of Appeals for Veterans Claims (Court) held that tinnitus was a disease, rather than merely a symptom and that 38 C.F.R. § 3.309 (a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" See Fountain v. McDonald, 27 Vet. App. 258 (2015). As the Court held tinnitus to be a chronic disease subject to applicable presumptions, the disease now falls within the parameters of 38 C.F.R. § 3.303 (b), as to claims of chronicity. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that "ringing in the ears is capable of lay observation"). During his June 2017 hearing, the Veteran reported that as his duties as a hospital corpsman also included duties with the Fleet Marine Force and as a combat medic. He described noise exposure to gunfire, explosions, aircrafts, and varying ship noises within close proximity, especially in the combat zone. He recalled that he experienced ringing in his ears beginning with his service in Baghdad, Iraq in conjunction with explosions and gunfire within close proximity. He indicated that it has been constant since his service and had become worse over the years. He indicated that he did not have post service noise exposure as his duties have been comprised of clerical and administrative work. During his VA June 2013 and April 2013 VA examinations, he also reported noise exposure from working near the flight lines. A review of the Veteran's service treatment records reflects that he was involved in a hearing conservation program. A June 2001 reference audiogram specifically noted that the Veteran was routinely noise exposed and was not issued hearing protection. At the time of the examination, it had been 14 hours since his last noise exposure. A March 2006 hearing conservation data form noted that the Veteran was routinely noise exposed with steady noise exposure and impulse noise exposure without the use of hearing protection. His MOS reflected that he was a Field Medical Service Technician. On February 2010 separation report of medical history, he denied having ear, nose, or throat trouble; or hearing loss. A clinical evaluation of the ears was normal. Service personnel records reflect that Veteran was a hospital corpsman, in which he was deployed to the USNS Comfort from March 7, 2003 to June 12, 2003, in support of Operations Iraqi Freedom and Enduring Freedom. An August 2003 evaluation report and counseling record revealed that he provided total patient care and direct bedside nursing care to over 150 patients. A June 2006 evaluation report and counseling record revealed that the Veteran delivered responsive and comprehensive health service support in order to preserve the fighting forces of "III MEF in combat and Military Operations Other Than War," for which he was deployed to Indonesia from May to June 2006. June 2007, June 2008 and March 2009 evaluation reports and counseling records reflect that he served as an instructor in Combat Life Saver and Tactical Combat Casualty Care. Post service treatment records included a December 2011 VA Audiology Consult, in which the Veteran had complaints of intermittent ringing equally in both ears, lasting 2-3 minutes, occurring at least once a day. He reported that the ringing in his ears began after being exposed to the flight line without using hearing protection during a routine pick-up when he was in service. The Veteran is competent to report in-service noise exposure, as well as in-service ringing in the ears following such exposure. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159 (a)(2). Furthermore, the Board finds his reports of in-service noise exposure credible as such are consistent with the type and circumstances of his military service, to exposure to gunfire, explosions, aircrafts, and varying ship noises within close proximity. 38 U.S.C.A. § 1154(a) (West 2014) (due consideration must be given to the places, types, and circumstances of a veteran's service). Accordingly, the Board acknowledges the Veteran's exposure to noise during his military service, and that his lay statements concerning the onset of ringing in the ears during service are both competent and credible, despite any lack of documented complaints on his February 2010 separation examination. The Board adds that there is no question that the Veteran currently has tinnitus. Specifically, given the nature of the disability, he is competent to say that he has tinnitus, and the Board finds no reason to question his credibility as to that fact. Turning the question of whether there is nexus, or link, between the Veteran's tinnitus and his in-service noise exposure, the Board finds that there is sufficient competent and credible lay evidence to establish that there is a likely continuity of symptoms from the time of service until the present. See 38 C.F.R. § 3.303(b). The Board reiterates that the Veteran is competent to identify tinnitus, to include the onset of the disorder and the continuity of it over the years. The Board nevertheless must consider whether he is credible in his assertions. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Here, the Board finds the Veteran's assertions regarding continuity of symptoms since service to be credible. As noted above, the Veteran has confirmed his in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service. He has also consistently reported to VA that he experienced tinnitus during active duty and that these symptoms have continued to this very day. Moreover, there is no evidence in the record calling into the question the Veteran's credibility as pertaining to his history of tinnitus. The Board is aware of the inconsistent opinions provided by the same VA examiner in June 2012 and April 2013, in which she originally opined that the Veteran's tinnitus was at least as likely as not (50% probability or greater) caused by or a result of military noise exposure. The examiner based her opinion on the report of the Veteran and review of the VA audiogram in December 2011, as well as the Veteran's reports of onset of tinnitus during active duty. Subsequently, in April 2013, she reported that she could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation, and more specifically, without review of the claims file. In an attempt to clarify the matter, a different VA examiner noted, in June 2013, that tinnitus was first diagnosed a year and a half after the Veteran was discharged from active duty and there were no significant changes in hearing noted during active service. The examiner opined that given this history and the low probability of hazardous military noise exposure as a hospital corpsman, it was less likely as not that the Veteran's tinnitus was caused by or a result of his military noise exposure. The Board finds that this opinion is afforded little probative weight as the examiner's rationale fails to acknowledge the Veteran's lay statements concerning the onset and symptomatology of his tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records, and does not account for competent lay testimony, to provide a negative opinion). Additionally, the examiner appears to have ignored service treatment and personnel records indicating that the Veteran's duties did, in fact, routinely expose him to noise with steady noise exposure and impulse noise exposure for which he did not wear hearing protection. As such, this opinion is based on an inaccurate and incomplete medical history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value) In sum, the Veteran has consistently provided competent and credible evidence that he experienced symptoms of tinnitus since his military service, and the Board finds no reason to question the veracity of such statements. These statements are entitled to significant probative weight, and thus, are sufficient to establish a likely continuity of symptomatology from service to the present for tinnitus. 38 C.F.R. § 3.303 (b); Walker, supra. Service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs