Citation Nr: 1761046 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 15-30 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force with active duty from December 1954 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for service connection for tinnitus, among other things. The Veteran filed a timely Notice of Disagreement in July 2013 with respect to the denial of service connection for tinnitus and also noted that he was asserting a claim of Clear and Unmistakable Error with respect to the increased rating he was given for his increased rating for internal derangement, left knee, postoperative. In the July 2012 rating decision, his evaluation was increased from 20 percent to 30 percent, effective May 10, 2011, bringing his combined evaluation to 40 percent. However, the August 2012 notification letter sent to the Veteran stated that the evaluation for internal derangement, left knee, postoperative, was increased from 10 percent to 20 percent. In a June 2015 correspondence to the Veteran, VA noted that the award notification included a typographical error with respect to the Veteran's evaluation for internal derangement, left knee, postoperative. VA noted that although the award notification letter had shown the incorrect evaluation percentage, the Veteran was paid for the correct 40% total combined rate. The issue was also not included in the certification of appeal. Accordingly, there is no action to be taken on this issue. In October of 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's currently diagnosed tinnitus was incurred during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103(A) (West 2014); 38 C.F.R. § 3.159 (2016). However, as discussed below, the Board is granting the Veteran's claim for entitlement to service connection for tinnitus, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is also payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. The Veteran and his representative assert that the Veteran's tinnitus had its onset in service following continued unprotected exposure to jet engine noises and has continued since. The Veteran was afforded a VA examination in connection with is claim for tinnitus in August 2011. However, the examiner was not able to provide an opinion with respect to the Veteran's tinnitus as he had not had an opportunity to review the Veteran's claims file. An addendum opinion was provided in September 2011, following a review of the Veteran's claims file. In this opinion, the examiner confirmed the Veteran's current diagnosis of tinnitus, but stated that it was less likely than not related to the Veteran's active duty service as there was no complaint of tinnitus in the Veteran's service treatment records. Additionally, the examiner noted that the Veteran's tinnitus had its onset approximately 4-5 years prior to the time of the examination, which would have been almost 30 years after active duty service. See, September 2011 VA examination addendum opinion. However, the Board has assigned this opinion with low probative value as it appears to have been based on inaccurate facts. During the Veteran's October 2017 videoconference hearing, the Veteran provided sworn testimony stating that his tinnitus had its onset in service, noting that during active service, he worked in aircraft maintenance and was subject to jet engine noises without adequate hearing protection. Additionally, while the Veteran did state that his tinnitus became constant about 4-5 priors to his VA examination in September 2011, he also stated that he suffered from intermittent tinnitus beginning from his exposure to noise while on active duty and that it continued following his discharge from active duty. The Veteran also stated that he did not seek treatment or report his tinnitus during his time on active duty because he did not know what it was. SeežOctober 2017 hearing transcript. As already noted, the Veteran is competent to testify as to observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). As the Board finds the Veteran as competent and credible with respect to his observable symptoms of tinnitus, the Board has assigned his statements high probative value. Additionally, the Veteran submitted a private medical opinion in which an audiologist who examined the Veteran and completed a review of his service treatment records opined that the Veteran's constant tinnitus was at least as likely as not due to his active duty service as a result of his exposure to loud noises while in the military without adequate hearing protection. See, private treatment record dated June 2013. As this opinion was completed following a review of the Veteran and after a review of his service treatment records, the Board has also assigned this opinion with a high probative value. Therefore, based on the above, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current tinnitus was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 1101 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral tinnitus is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs