Citation Nr: 21037517 Decision Date: 06/21/21 Archive Date: 06/21/21 DOCKET NO. 18-10 107 DATE: June 21, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT Tinnitus manifested in service and is attributable to service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard had active duty for training (ACDUTRA) from December 1967 to May 1968, then served on active duty from May 1968 to August 1969. He had service in the Republic of Vietnam. In January 2020 the Veteran testified at a Board travel hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. During the hearing, the VLJ clarified the issue on appeal, received additional evidence from the Veteran, and elicited relevant testimony from the Veteran. These actions complied with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. 1. Service connection for tinnitus. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disease, including organic disease of the nervous system such as sensorineural hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 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). The Veteran seeks service connection for tinnitus, which he STATES began during service in Vietnam and was caused by artillery fire. After reviewing the evidence of record, the Board concludes that service connection for tinnitus is warranted. Review of the Veteran's personnel records shows that during his service in Vietnam, his MOS was 13E20 and 13E40 for cannon fire direction specialist. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of tinnitus. The Veteran reported a history of ear, nose, and throat trouble on the September 1967 report of medical history at enlistment without elaboration, and the September 1967 report of medical examination shows a clinically normal evaluation of the ears and ear drums. A March 1968 medical examination shows a clinically normal evaluation of the ears and ear drums. The Veteran reported a history of ear trouble on the August 1969 separation medical history and clarified that he had an ear infection four years prior without complications. The August 1969 separation examination shows a clinically normal evaluation of the ears and ear drums. January 2017 private audiology records show the Veteran reported occasional left ear tinnitus for "over a month." The Veteran was provided a VA hearing loss and tinnitus examination in May 2017. The recorded onset of tinnitus was listed as "about 5-6 years ago." The examiner determined tinnitus was less likely than not associated with the Veteran's hearing loss, and less likely than not caused by or a result of military noise exposure. The examiner explained that the Veteran reported he was seen for vertigo seven years ago, and that the onset of tinnitus was reported around that time and attributed to vertigo. We note that, although the Veteran does not have a hearing loss disability for VA compensation purposes, the examiner did provide a positive nexus opinion for the Veteran's high threshold left ear hearing loss. The examiner noted the Veteran's military occupational specialty (MOS) during service was field artillery, which carries a high probability for hazardous noise. The Veteran had reported significant noise exposure including 105- and 155-millimeter howitzer artillery pieces in combat and training and aircraft and helicopters. In a November 2017 statement, the Veteran reported that he had artillery noise exposure from howitzers during his service in Vietnam, and that ringing in the ears was considered common and normal since he was constantly exposed to artillery noise without hearing protection. He also reported that he did not know that tinnitus us not normal, and that he had tinnitus for approximately 50 years since service. In the February 2018 VA Form 9, the Veteran reported that his tinnitus began during service in Vietnam as an artilleryman, that he had told the same to the May 2017 VA examiner, and that the ringing had intensified during a bout of vertigo 7 years ago. The Veteran has submitted a March 2019 private audiologic consultation and nexus opinion from Dr. M.R., an audiologist. During the examination, the Veteran stated that he had tinnitus since his military service that worsened during a bout of vertigo that occurred around 2011. He reported that in Vietnam, he served daily as fire direction control and that his role was to direct the howitzers where to fire, and that he typically worked in a fire support base with six 155-millimeter howitzers. When the guns fired, he would cover his ears with his hands because the fire caused his ears to ring loudly, and the ringing would eventually subside. He also stated that, after returning from Vietnam, he had asked a friend if she could hear the same sounds he could, that he realized he had chronic ear noises, and found it irritating that he heard sounds others could not. Dr. M.R. concluded that the Veteran's tinnitus is more likely than not the result of unprotected military noise, with the intensity of the tinnitus then progressing to present day levels due to the 2011 auditory/vestibular event. She explained that audiologic examination had confirmed the Veteran had elevated high frequency thresholds in his left ear, and that the VA examiner had already indicated the elevated thresholds are as likely as not caused by military service. She also cited literature that the typical sound pressure levels from a 155-millimeter howitzer was listed at 178 decibels. The examiner also considered the difference between the Veteran's responses to the May 2017 VA examiner and the remarks he later provided regarding onset, noting the Veteran's assertion that he told the May 2017 examiner that tinnitus had worsened in 2011 due to vertigo but had been present during and after his combat duty. The Veteran testified at a Board hearing in January 2020. He reported that he fired artillery during active duty in Vietnam, that he had ringing in his ears on active duty, and he still has ringing in his ears every day. He also stated that the ringing in his ears got worse at times. He stated the May 2017 examiner's conclusion tinnitus had begun seven years prior was not true. The undersigned VLJ clarified that the Veteran had ringing in his ears at least from time to time when howitzers were fired, that noticed the ringing on a regular basis, and that the tinnitus did not start when the Veteran had vertigo after service, but rather had intensified after the vertigo. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. § 1154 (a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Veteran is competent to report that he was exposed to hazardous noise during service. Such exposure is also supported by the Veteran's MOS during his service in Vietnam. He is also competent to report lay observable symptoms such as tinnitus, that he experienced ringing in his ears following exposure to howitzer fire, and that he had ringing in his ears since service. There are inconsistencies regarding the onset of the tinnitus. On the one hand, the Veteran has regularly reported that his tinnitus began during service in Vietnam in 1969 and has continued since. Although he has testified that vertigo in 2011 worsened the tinnitus, he has maintained that the tinnitus preexisted the vertigo. On the other, the May 2017 VA examination report shows tinnitus began during the bout of vertigo approximately seven years prior to the examination, well after the Veteran separated from service, and the examiner attributed the tinnitus solely to the vertigo. The Veteran has since clarified that he told the VA examiner that tinnitus had begun in service but was worsened by the vertigo, although we note such is not recorded on the examination report. Despite these inconsistencies, the Board will resolve the benefit of the doubt in the Veteran's favor and concludes his assertions that tinnitus began during service and continued thereafter to be credible. As explained above, he has reported that tinnitus began during service in Vietnam and that the symptoms have continued since he separated from service in 1969. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Here, the credible evidence supports the claim and service connection for tinnitus is warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.