Citation Nr: 18160980 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-04 957 DATE: December 28, 2018 ORDER Service connection for tinnitus is granted. Service connection for generalized anxiety disorder is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed tinnitus as a result of active service. 2. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed generalized anxiety disorder as a result of active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Charles v. Principi, 16 Vet. App. 370 (2002); Fountain v. McDonald, 27 Vet. App. 258 (2015). 2. The criteria for a grant of service connection for generalized anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1999 to April 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in October 2018. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). 1. Service connection for tinnitus In this case, the Veteran essentially contends he developed recurrent tinnitus while on active duty. The Board further observes that the Veteran’s lay testimony is of particular importance in this case as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. This is of crucial importance in the case on appeal. The medical evidence of record shows that the Veteran has a current diagnosis of tinnitus. The dispute is over the etiology of the disorder, not its existence. The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The Court has held that tinnitus was a disease, rather than merely a symptom, and 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.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). As stated above, the Veteran’s lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles, supra. Even when there is no competent medical evidence of record that addresses when the Veteran’s tinnitus began, his statements alone may be considered competent evidence to make such a determination. Id. at 374. Accordingly, the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and the credible lay evidence of record shows that it began in military service and continued thereafter. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warrant for tinnitus. 2. Service connection for generalized anxiety disorder In addition to the general rules of service connection noted above, service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). The provisions of 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM). If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(1). The Veteran has contended that he developed an acquired psychiatric disorder, to include PTSD due to in-service stressor that occurred while he was stationed aboard the USS Tarawa, and provided details thereof. Here, the Veteran’s account of this stressor was conceded below, as noted in the December 2015 Statement of the Case (SOC). Further, this stressor was recognized as being consistent with “fear of hostile military or terrorist activity” which includes special provisions under 38 C.F.R. § 3.304(f)(3). Despite the foregoing, the Board observes that a November 2015 VA examination concluded the Veteran did not satisfy the criteria for a diagnosis of PTSD. In addition, various VA treatment records show negative PTSD screening, to include in October 2012, November 2013, December 2014, and May 2015. Nevertheless, the VA examination and treatment records reflect the Veteran does have a generalized anxiety disorder. The Board acknowledges that the November 2015 VA examination included an opinion against the Veteran’s anxiety disorder being related to service, but that was based upon his anxiety symptoms having developed post-service. His VA treatment records indicate his anxiety developed in 2003 concurrent with his military service. Consequently, the Board finds that the competent medical evidence is in equipoise as to whether his anxiety disorder is etiologically linked to service. As noted above, under the benefit of the doubt rule when the evidence is in relative equipoise the claimant prevails. Gilbert, supra. The Court has also held that that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Alemany v. Brown, 9 Vet. App. 518 (1996). In view of the foregoing, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran developed generalized anxiety disorder as a result of active service. Therefore, service connection is warranted for the anxiety disorder. In making this determination, the Board notes that nothing in the competent medical evidence of record reflects the Veteran’s psychiatric symptoms have been attributed to a diagnosis other than anxiety disorder. Further, the November 2015 VA examination reflects all of the noted psychiatric symptomatology was attributed to the anxiety disorder. Thus, the Board’s grant of service connection for a generalized anxiety disorder constitutes a full grant of the benefits sought on appeal with respect to this claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran has essentially contended that he developed hearing loss as a result of in-service noise exposure, and provided details thereof. The Board finds his account of such exposure to be competent and credible. The Board also notes, however, that for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the record, including a March 2013 VA audio examination, does not reflect the Veteran has a hearing loss disability as defined by VA regulations. Despite the foregoing, the Board notes the Veteran has indicated that his hearing loss has increased in severity since the time of the April 2013 VA examination. As such, he may currently satisfy the criteria for a hearing loss disability for VA purposes. Therefore, the Board finds that remand is required to accord the Veteran a new competent medical examination regarding his hearing loss claim. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records pertaining to the Veteran which cover the period from November 2015 to the present. 2. Request the Veteran identify the names and addresses of all medical care providers who have treated him for his hearing loss from November 2015 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing loss symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence.   4. Schedule the Veteran for a competent medical examination by an appropriately qualified clinician to address the nature and etiology of his claimed hearing loss. If the Veteran is shown to have a hearing loss disability as defined by 38 C.F.R. § 3.385, then the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service to include his account of noise exposure therein. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel