Citation Nr: 1756589	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  11-23 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Casadei, Counsel 



INTRODUCTION

The Veteran served on active duty from September 1962 to December 1964.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The issue on appeal was previously remanded by the Board in July 2016.


FINDINGS OF FACT

1.  The Veteran has currently diagnosed tinnitus.

2.  The Veteran was exposed to high levels of noise in service.

3.  The evidence is in equipoise as to whether the Veteran's tinnitus is, at least in part, etiologically related to in-service noise exposure.


CONCLUSION OF LAW

The criteria for service connection for bilateral tinnitus have been met.  38 U.S.C. 
§§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017).  The claim of service connection for tinnitus has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome of this decision (grant of service connection for tinnitus), no conceivable prejudice to the Veteran could result from this decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 .

The Veteran contends that he is entitled to service connection for tinnitus due to nose exposure in service.

The Veteran's military service included work around aircraft.  He has consistently stated that he was exposed to noise from heavy equipment and engine noise from these aircrafts.  In his July 2011 substantive appeal, the Veteran reported that the ringing in his ears began while working aboard the flight deck of an aircraft carrier and with T-28s (18 cylinder reciprocating engines).  He reported that he would be approximately 5 feet away from the tip of the wings when the pilots would start the engines.  

The Veteran was afforded a VA audiological examination in October 2009.  At that time, he reported noise exposure in service and post-service occupational noise exposure for about 20 years.  He complained of constant tinnitus with the onset in service.  An opinion as to the etiology of the Veteran's tinnitus was not provided and the examiner indicated that the degree of hearing sensitivity could not be determined due to inconsistent and unreliable results.  In his July 2011 substantive appeal, the Veteran explained that the inconsistent responses during his audio testing were due to chronic ringing in his ears and that everything sounded "mumbo jumbo."

Pursuant to the Board's July 2016 remand, VA obtained a medical opinion in May 2017.  The examiner indicated that the claims file had been reviewed.  Regarding tinnitus, the examiner noted that tinnitus was reported at the VA evaluation in 2009 with a reported onset time as during service.  However, the examiner indicated that thresholds could not be determined with that evaluation due to unreliable results.  The examiner opined that a tinnitus opinion could not be provided without resort to mere speculation.  In this regard, the examiner explained that hearing sensitivity was normal throughout the Veteran's service, to include at service separation and following service with occupational evaluation in 1967.  According to the examiner, when there is no hearing loss or changes, "the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence."  Moreover, the examiner acknowledged that the Veteran was exposed to noise in service, but he was also exposed to noise in occupation and hearing loss was not evidenced until after service while in an occupation with significant noise exposure.

The Board finds that the May 2017 VA medical opinion weighs neither for nor against the Veteran's claim.  In this regard, the examiner stated that because the Veteran did not have hearing loss in service, the cause of tinnitus could not be determined within a reasonable degree of certainty.  Essentially, the examiner acknowledged both the in-service noise exposure and the Veteran's post-service occupational noise exposure as potential causes.  

For these reasons, and given the Veteran's extensive exposure to aircraft noise during service, the Board fins that the evidence is in equipoise as to whether the Veteran's currently diagnosed tinnitus is etiologically related, at least in part, to in-service noise exposure.  Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 C.F.R. § 3.102.


ORDER

Service connection for bilateral tinnitus is granted.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs