Citation Nr: 18142278
Decision Date: 10/15/18	Archive Date: 10/15/18

DOCKET NO. 16-35 658A
DATE:	October 15, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
FINDING OF FACT
The Veteran’s bilateral tinnitus is related to in-service noise exposure.
CONCLUSION OF LAW
Bilateral tinnitus was incurred in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 2002 to November 2005.
The Veteran was previously represented by American Veterans (AMVETS). By a written statement, received by VA in January 2018, AMVETS withdrew representation of the Veteran. As the Board, RO and Veteran were notified of this action, and the action does not adversely impact the Veteran's interests, the Board finds that the attorney properly withdrew from representation. As the Veteran has not appointed another representative, the Board considers him to be self-represented in this case.
Entitlement to service connection for tinnitus
Legal Criteria
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).
Establishing service connection generally requires (1) 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) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Those "chronic" disorders include tinnitus.
In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (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"). 
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).
With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b).  Section 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA deems tinnitus as an organic disease of the nervous system. See VA Under Secretary for Health Memorandum (October 1995).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
The Veteran contends that he has tinnitus related in part, to noise exposure while serving in a Field Artillery unit where weapons qualifications were standard. Service treatment records are negative for evidence of tinnitus during service or at discharge, and the Veteran denied tinnitus on medical questionnaires in 2002, 2003 and 2005. Nevertheless, as the RO has noted, service treatment records show that the Veteran was routinely exposed to noise and that he was deployed to Iraq.  As such, and in light of the Veteran's duties and experiences during service, the Board finds his reports of in-service noise exposure to be credible and acoustic trauma in service is conceded. 38 U.S.C. § 5104 (a). The RO has also conceded that the Veteran was subjected to noise exposure in service. See May 2016 statement of the case.
The medical evidence of record shows that the Veteran has a current diagnosis of bilateral tinnitus. See March 2014, January 2016 and February 2016 VA examination reports.
The Board has attempted to obtain a VA medical opinion in this case. However, all the opinions obtained are inadequate. In this regard, a March 2014 VA examiner opined essentially that the Veteran’s tinnitus is less likely as not caused by or a result of military noise exposure because there was no evidence of tinnitus occurrence in service, and there was no evidence linking his tinnitus to a specific acoustic trauma or noise exposure in service.  Likewise, a January 2016 VA examiner opined that the Veteran’s tinnitus is less likely than not cause by or a result of military noise exposure. The rationale given was that there was no evidence of acoustic trauma in service at either ear, which would cause tinnitus, and there is no documentation of tinnitus during active military service or at the time of discharge.  As noted above, in-service noise exposure has been conceded. Therefore, the examiners’ findings that there was no acoustic trauma in service are flawed and based on an inaccurate factual premise. Furthermore, the examiners failed to take into account that fact that the absence of in-service evidence of tinnitus during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of current tinnitus and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for tinnitus. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The February 2016 VA examiner opined that based on the Veteran’s normal hearing at separation, lack of aggravation of hearing loss, the absence of evidence of tinnitus during service, and the Veteran’s denial of tinnitus in 2002, 2003, 2005 and during VA outpatient treatment in 2013, the Veteran's recurrent, bilateral tinnitus is less likely as not caused or aggravated by military noise exposure. The Board finds that, as the examiner’s opinion is based, in part, on the absence of evidence of tinnitus during service or at separation, the opinion lacks probative value. See Ledford v. Derwinski and Hensley v. Brown. Furthermore, the fact that the Veteran may not have been experiencing tinnitus on the day of his evaluations in 2002, 2003 and 2005, and on the day of his VA treatment in 2013, does not mean that he did not experience it at all during service or since his discharge from service. The Veteran, as noted, has reported continuous tinnitus since noise exposure in service.
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The Board notes that there is no clinical or other test that can confirm the presence or absence of tinnitus. A diagnosis usually is based on the lay report of the patient. Further, the Veteran is fully competent to identify and report any instances of tinnitus he may have experienced. See Jandreau, 492 F.3d 1372; 38 C.F.R. § 3.159 (a)(2). The Veteran has reported ringing in the ears following conceded noise exposure in service.  See November 2015 notice of disagreement, March 2014 VA examination report, January 2016 VA examination report and February 2016 VA examination report. There is no evidence of tinnitus at the time of the Veteran’s separation from service. However, the absence of contemporaneous medical documentation, alone, does not discredit his lay testimony. Davidson, 581 F.3d 1313. Furthermore, he has provided competent evidence of continuity of symptomatology, in that he has reported recurrent tinnitus since service (for over 10 years) in statements during the appeal and on VA examinations. The Board finds no basis on which to doubt the Veteran's credibility. The Board also notes that a private physician who evaluated the Veteran in March 2017 opined that his tinnitus could be service-related. See March 2017 statement from L. N., PA-C from Greensboro Ear, Nose and Throat. There is evidence against the claim, in that the VA examiners opined that the Veteran's hearing loss is not related to noise exposure in service. However, the VA examiner opinions are all inadequate for the reasons noted above. Hence, the weight of the evidence is in his favor, and service connection for tinnitus is warranted. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a).
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	F. Yankey, Counsel