Citation Nr: 1800832 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-06 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active military service from October 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for tinnitus. This matter was before the Board in May 2017, at which time it was remanded for additional evidentiary development, including a medical opinion from a VA audiologist to determine the etiology of the Veteran's tinnitus. While the matter was in remand status, in an October 2017 rating decision, the RO granted service connection for bilateral hearing loss. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for bilateral hearing loss. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board notes that the Veteran filed a claim for an increased rating for his service connected bilateral hearing loss in December 2017. See December 2017 VA Form 21-4138. However, effective March 24, 2015, a Notice of Disagreement (NOD) must be submitted via a specific form provided by the VA (VA Form 21-0958). 38 C.F.R. § 20.201 (2017). Accordingly, the Board does not construe the December 2017 claim for an increase of his service connected bilateral hearing loss as a NOD to the October 2017 rating decision. Thus, this issue is not in appellate status at this juncture. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). FINDING OF FACT The evidence is at least in equipoise as to whether tinnitus is the result of noise exposure during military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154(a) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veteran's claim of service connection for tinnitus has been granted, as discussed below. As such, the Board finds that any error related to the VA's duty to notify/assist is moot. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (stating that lay person competent to testify to pain and visible flatness of his feet). Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran asserts that his tinnitus is the result of noise exposure incurred during military service. The evidence shows that the Veteran has been assessed with tinnitus. See 09/06/2017, C&P Examination; December 2014 VA examination report. Thus, a present disability has been established by competent and credible evidence. The Veteran's DD-Form 214 reveals that he was an engineer equipment repairman. As an engineer, he was exposed to loud noises, including machinery, air compressors, and firing of M1 carbines. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran's active service. Having established a current disability and in-service noise exposure to acoustic trauma, the remaining question is whether the Veteran's tinnitus is due to noise exposure during military service. The Veteran was informed that his personnel and service treatment records were not available. However, he reported that his tinnitus began in 1955. Furthermore, the Veteran's wife submitted a statement and indicated that the Veteran complained of constant ringing in his ears when he returned from service. A VA examination was performed in December 2009, at which time it was reported that the Veteran denied tinnitus. The Veteran underwent a subsequent VA examination in December 2014, at which time the Veteran reported tinnitus, which he described as bilateral constant ringing and buzzing, but was unable to determine the onset. Accordingly, the examiner concluded that tinnitus was less likely than not related to military noise exposure. A medical opinion was provided by a VA examiner in September 2017. The examiner concluded that the Veteran's statements that tinnitus started in or shortly after military were credible and that longstanding tinnitus can be considered evidence of inner ear damage and is consistent with exposure to potentially hazardous noise. However, the examiner concluded that it was less likely than not that his tinnitus was related to his military service because he denied tinnitus at the time of the 2009 examination and reported bilateral tinnitus at the time of the 2014 examination but was unable to indicate the exact date of onset. After a review of the evidence, the Board finds that service connection for tinnitus is warranted. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran is certainly competent to report tinnitus. The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In making this determination, the Veteran has confirmed in-service noise exposure, and his description of in-service noise exposure is consistent with the circumstances of his service. The Veteran reported that he experienced tinnitus in 1955, which was within one year of his separation from service. Furthermore, his wife indicated that he complained of ringing in his ears when he returned from service. Continuity of symptomatology alone is sufficient for an award of service connection for chronic diseases. Walker, 708 F.3d at 1338; see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Indeed, VA deems tinnitus a chronic disease under organic diseases of the nervous system. See VA Under Secretary for Health Memorandum (Oct. 1995); see also 67 Fed. Reg. 59033-01 (Sept. 19, 2002); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding 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'"). The Board acknowledges the negative opinions provided by the VA examiners. However, the examiners failed to acknowledge or take into account the Veteran's statement regarding the onset of his tinnitus in 1955. Furthermore, the September 2017 VA examiner failed to take into consideration the Veteran's wife statement dated in May 2017, which indicated that the Veteran complained of constant ringing in his ears when he returned from service. As such, these negative opinions are given less weight. Furthermore, the Board notes that the Veteran is service connected for bilateral hearing loss and tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See THE MERCK MANUAL, Section 7, Ch. 82 (18th d. 2006). In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's current tinnitus is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails and service connection for tinnitus is warranted. See Gilbert, 1 Vet. App. at 53-54. ORDER Service connection for tinnitus is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs