Citation Nr: 1807537	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-18 998	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

N. Laroche, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from December 1975 to December 1980. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon which, inter alia, denied entitlement to service connection for tinnitus.  The Veteran submitted additional pertinent medical evidence and the claim was, again, denied in an April 2012 rating decision.  The Veteran filed a timely notice of disagreement (NOD) and substantive appeal, via a VA Form 9.  

In his May 2014 VA Form 9, the Veteran requested a live videoconference hearing.   The Veteran was scheduled for a hearing in April 2017, but did not appear.  Furthermore, he did not request an additional hearing.  The March 2017 hearing letter was not returned as undeliverable.  Accordingly, the Veteran's hearing request is considered withdrawn.  See 38 C.F.R. § 20.704 (d) (2017).


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's current tinnitus is related to his active military service.  


CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Board notes that VA has certain duties to notify and assist the Veteran.  See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  Given the favorable actions taken below concerning the claim for entitlement to service connection for tinnitus, the Board will not discuss further whether those duties have been accomplished.

II. Legal Principles and Analysis

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. § 1131; 38 C.F.R. § 3.303(a).  Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

"[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 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

The Veteran contends that his tinnitus is related to noise exposure in service. 

Service treatment records (STRs) do not reflect treatment for or a diagnosis of tinnitus.

In a January 2011 statement, the Veteran reported that his tinnitus had been present since he left service.  He also reported that his military occupational specialty (MOS) duties consisted of construction and a range instructor and the hearing protection requirements were not followed.  

During his August 2011 VA examination, the Veteran reported he first noticed tinnitus "probably in 1978-1979."  He reported that he was provided hearing protection in service, and, after service, he used to hunt and wore hearing protection.  The examiner found that the Veteran's tinnitus was less likely than not, less than 50/50 probability, caused by noise exposure in service.  As rationale, the examiner reported that the Veteran's service records reflected preexisting hearing loss and that his hearing at the end of his service was not aggravated by or made worse by noise exposure in the service.  He stated that there was no significant change in hearing since the Veteran entered the service until separation.  He found that since tinnitus is associated with hearing loss and there was evidence of hearing loss when the Veteran entered the service and after, the tinnitus was most likely secondary to the hearing loss and either occurred before the service or was associated with the deterioration of his hearing after leaving the service.  

In December 2011, after a review of his records and history from the Veteran, the Veteran's private audiologist opined that the Veteran's tinnitus is more likely than not service connected; based on his report of when the tinnitus was noticed and the type, degree, and configuration of the loss as well as the types of acoustic trauma to which he was exposed.  

In his April 2013 NOD, the Veteran continued to report that hearing protection was not suggested for his MOS's in service.  He also noted that during time in active duty, there was a "tough guy culture" and hearing protection was scoffed at.  

The Board notes that tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").  Furthermore, medical treatment evidence of record reflects a diagnosis of tinnitus.  Thus, the Veteran has met the current disability requirement.

As noted above, the Veteran asserted that he was subject to noise exposure during active service due to his duties in construction and artillery.  His statements have been found competent, credible, and consistent with the circumstances of his service.  See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  Therefore, the Veteran has met the in-service injury or event requirement.  Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure.

Upon review of the evidence of record, the Board finds that service connection for tinnitus is warranted.  

The August 2011 VA audiological opinion reflects a lack of a relationship between the Veteran's current tinnitus and in-service noise exposure.  However, it appears that the examiner did not take into consideration the Veteran's statements; specifically that he was subject to noise exposure in service and that he noticed that his tinnitus began in service-not at the onset or after separation.  Moreover, the examiner did not indicate any reason why he would discount the Veteran's competent statements.  Thus, the opinion is inadequate.  Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").

In contrast to the above inadequate opinion, the December 2011 positive medical opinion was based on the Veteran's statements, examinations, and hearing testing results-an entire review of the Veteran's medical history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  To be adequate, an examination must take into account an accurate history.  Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008).  The Board notes that, to the extent that the opinion relied, in part, on the service history provided by the veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinion is contradicted by other evidence in the record or when the Board rejects the statements of the veteran.  See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006).  Here, the Board has found the veteran's statements to be credible.  Thus, the Board finds this opinion to be probative.  

Given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to his in-service noise exposure.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

ORDER

Service connection for tinnitus is granted.


____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs