Citation Nr: 1753852 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-08 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from August 1992 to August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In an April 2017 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). The case has since been returned to the Board for appellate review. FINDING OF FACT Tinnitus manifested to a compensable degree within one year of the Veteran's discharge from active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, a veteran 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, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his tinnitus was caused by his in-service noise exposure. See April 2016 VA Form 9. The Board notes that the record reflects that the Veteran currently has tinnitus. See September 2015 VA examination. Consequently, the first element required for service connection has been established. The record also supports the Veteran's assertions regarding in-service noise exposure. The Veteran reported that while serving on an aircraft carrier, he encountered excessive noise from planes on the flight deck. See April 2016 VA Form 9. The Veteran's DD 214 shows that his last duty assignment was on an aircraft carrier, the USS Nimitz, CVN 68. Given the circumstances of the Veteran's service, and affording the Veteran the benefit of the doubt, the Board acknowledges the Veteran's assertion of in-service noise exposure as credible and consistent with his service. 38 U.S.C.A. § 1154(a). He denied experiencing any occupational or recreational noise exposure after service. See September 2015 VA examination. The Veteran's STRs are silent for any tinnitus complaints, treatment, or diagnoses during active duty service. However, the Veteran does not contend that he experienced symptoms of tinnitus while on active duty. During his September 2015 VA examination, the examiner noted the Veteran's report that his tinnitus began after service, but did not specify at what point after service the symptoms started. However, the Veteran has indicated that his tinnitus began within the first year following his separation from active duty service. In his July 2015 claim, the Veteran reported that he received treatment for his tinnitus from the VA Northern Indiana Health Care System Marion beginning in January 1997. The Board notes that the RO determined that relevant records from this facility dated from August 1996 to March 1999 are not available for review. See March 2016 Report of General Information. Although lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309. In addition, the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board additionally finds the Veteran credible in his report that he received treatment for tinnitus beginning in January 1997 as there is no contradictory evidence of record. The Board also acknowledges that the Veteran denied having symptoms of tinnitus in a September 2008 VA treatment record; and an August 2012 treatment record stated that no symptoms of tinnitus were reported. However, the Veteran's report in a July 2010 VA treatment record that he experienced symptoms of tinnitus on an occasional basis provides an explanation for the lack of symptoms at certain times. In addition, recurrent tinnitus is a compensable disorder. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). Consequently, the Veteran's statements support a finding that his tinnitus manifested to a compensable degree within one year of his discharge from active duty service. In so finding, the Board notes that there are negative VA medical opinions of record. In a September 2015 opinion and a January 2016 addendum, the September 2015 VA examiner emphasized the fact that the Veteran did not report experiencing symptoms of tinnitus during service. The examiner also pointed to the Veteran's normal hearing at the time of his separation from service in 1996. However, the examiner did not explain why either of these observations was significant in determining the etiology of the Veteran's tinnitus. The examiner also stated that the cause of tinnitus is unknown, and it is a common symptom resulting from a wide range of possible underlying causes. As the examiner did not elaborate any further, it is unclear whether these underlying causes included the type of noise exposure that the Veteran experienced during service. Consequently, this opinion provides little probative value. In a May 2017 opinion, an examiner similarly noted that the Veteran had normal hearing upon separation and did not contend that his tinnitus began during service. However, the examiner appeared to misunderstand the Veteran's contentions as she noted that his current report that his symptoms began during service was inconsistent with her previous reported history. To the contrary, the Veteran has been consistent throughout the appeal period in reporting that his tinnitus began after service. The examiner also stated that there was no objective evidence of a noise injury during service due to the normal hearing at separation. According to the examiner, finding that tinnitus was related to noise trauma in the military would be speculative as doing so would mean accepting the scientifically unsubstantiated theory that the Veteran's tinnitus occurred as a result of an undiagnosed noise injury. The Board finds that this opinion should be afforded minimal probative weight. As previously discussed, the Board has determined that there is sufficient evidence to find that the Veteran was exposed to excessive noise during service. In fact, the examiner was instructed in the April 2017 Board decision to accept as true the Veteran's report that he was exposed to loud noises in service. Moreover, despite the examiner's reliance on the fact that the Veteran's tinnitus did not manifest until after service, its manifestation to a compensable degree within one year of separation allows the Board to presume that the Veteran's tinnitus was incurred in service. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran meets the requirements for a presumption of service connection. Service connection for tinnitus is therefore granted. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs