Citation Nr: 1752860 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-36 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDING OF FACT The Veteran's tinnitus is the result of extensive acoustic trauma in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1137, 1154, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 through December 1969. He received two Purple Heart awards, among other decorations, for his service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at a February 2017 videoconference hearing. A transcript is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Veteran contends his tinnitus began after extensive acoustic trauma during his active duty service. Specifically, he claims he was exposed to rifle and artillery fire both in training and during combat in Vietnam. See February 2011 Statement in Support of Claim. Service treatment records do not show any complaints of, or treatment for, ringing in the ears while in service, and there is no record of any post-service complaints of, or treatment for, ringing in the ears until multiple decades following service. Nevertheless, lay evidence is competent and sufficient to establish a diagnosis of a condition when a lay person (1) is competent to identify the medical condition; (2) is reporting a contemporaneous medical diagnosis; or (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence may also establish the manifestations of a chronic condition during service, or within a presumptive period; and, when a condition is not chronic and there is no medical evidence of a causal nexus, lay testimony or medical evidence may establish continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran was first diagnosed with tinnitus in February 2010. VA treatment records note he was referred to audiology in February 2010 for reports of constant tinnitus in the left ear with onset approximately five years prior. He reported weapon, grenade, mortar, and tank noise exposure while in Vietnam and temporary left-sided tinnitus following the explosion of a concussion grenade. The audiologist opined the Veteran's left-sided tinnitus was more likely than not related to his noise trauma while in combat. He received another audiology consultation in September 2010. At the time he reported that his tinnitus had worsened since February. He used to notice the tinnitus two to three times a day and it had increased to ten times a day. Again, the audiologist opined the Veteran's left-sided tinnitus was more likely than not related to his noise trauma while in combat. The Veteran was afforded a VA examination to determine the etiology of his tinnitus in October 2010. He reported the ringing in his left ear had gradually increased in duration from seconds to 20 minutes and occurred six to seven times a day. He also noticed ringing in his right ear once or twice weekly that lasted for a few seconds at a time. The symptoms had been present for 10 years. The examiner opined it was less likely than not that the Veteran's tinnitus was etiologically related to his active duty service because there was no complaint of tinnitus or hearing loss in his service treatment records and there was no hearing loss at the time to draw a nexus to a service-connected disability. The Board finds the October 2010 VA examination is not probative because the examiner placed significant emphasis on the Veteran's failure to report tinnitus while in service. In November 2013 the Veteran was afforded another VA examination to determine the etiology of his tinnitus. The examiner noted the Veteran reported conflicting evidence because he claimed his tinnitus was due to military noise exposure, but in February 2010 he reported the onset of his tinnitus was approximately five years prior and at his October 2010 VA examination he reported his tinnitus had been present for ten years. The examiner opined it was less likely than not that the Veteran's tinnitus was related to his military acoustic trauma because the Veteran reported delayed onset tinnitus, which was not consistent with tinnitus secondary to acoustic trauma. Further, the examiner found no complaints of tinnitus in the Veteran's service treatment records and audiometric evidence in his VA treatment records did not support acoustic trauma with which to draw a nexus to the Veteran's tinnitus. The November 2013 VA examiner appears to base her negative opinion on the Veteran's conflicting reports of when he first noticed his tinnitus. However, as is discussed further below, the Board finds the Veteran's reports of experiencing tinnitus following acoustic trauma to be credible. In February 2017, the Veteran testified at a Board hearing. During the hearing, he testified as to the numerous times he was exposed to acoustic trauma while on active duty, both during training and while in Vietnam. He reported that following the explosion of a concussion grenade, he experienced temporary hearing loss and tinnitus, and that the tinnitus had been present ever since. He reported that he did not seek treatment for his tinnitus because he did not know what it was and he was not aware he could seek help through VA. Despite conflicting reports noted by the February 2017 VA examiner, the Board finds the Veteran's testimony that his tinnitus began during service in Vietnam to be credible. The Veteran is competent to report that he has experienced ringing in his ears since his in-service acoustic trauma. Further, the Veteran has consistently attributed his tinnitus to military noise exposure, specifically following the explosion of a concussion grenade near him. Given that the Veteran has credibly described the onset of the symptoms which have since been diagnosed as tinnitus, this condition has progressively worsened over time since service to the present day, and VA audiometry records note that his tinnitus is etiologically linked to his military acoustic trauma, entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs