Citation Nr: 0725502 Decision Date: 08/16/07 Archive Date: 08/22/07 DOCKET NO. 05-41 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT Bilateral tinnitus is attributable to service. CONCLUSION OF LAW Bilateral tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The claim of service connection is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 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. 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 an 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). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service medical records reflect that in February 11, 1971, the veteran complained of ringing in his right ear and possible hearing loss for 5 months. The next day, he was noted to have slight bilateral high frequency hearing loss secondary to trauma; he was issued ear plugs. In July 1971, the veteran was afforded a separation examination. The veteran did not complain of tinnitus nor was he diagnosed as having tinnitus. In April 2004, correspondence was received from the veteran in which he indicated that during service, he was assigned to an artillery unit during service and was an assistant gunner on a 102 howitzer. He described inservice noise exposure which he was constantly subjected to in his duty assignments. He stated that the constant barrage of excessive noise over a period of 11 months caused damage to his hearing and constant ringing in his ears. Post-service, there are no medical records until the veteran was examined by VA in July 2004. At that time, the veteran stated that he was part of an artillery unit while in Vietnam. Post-service noise exposure was minimal as the veteran was a software engineer. The veteran denied any recreational noise exposure or ear surgery, head trauma, ototoxic medication, or family history of hearing loss. Audiological evaluation revealed that the veteran currently had hearing loss within VA's standards for hearing loss. Tinnitus was also shown to be present and bilateral in nature. The veteran stated that he had had constant tinnitus for 15 years. This statement conflicts with his prior report of having ringing in his ears since service. The examiner opined that current hearing loss was caused by service. He cited to the veteran's entrance and separation examinations. However, the examiner stated that tinnitus was not "time locked to his military experience." As such, it was less likely than not that tinnitus was caused by or a result of military service. Thereafter, the veteran submitted further correspondence, the veteran again emphasized that tinnitus had been present since service. The veteran's representative indicated that the veteran's inservice tinnitus was not properly considered nor discussed by the VA examiner. July 2006 VA outpatient treatment records have also been associated with the claims file. They reflect diagnoses of hearing loss with tinnitus. It was noted that the veteran had inservice noise exposure in an artillery unit with no civilian noise exposure. The examiner indicated that the tinnitus had been present since service, was bilateral, and was constant. The examiner opined that the etiology was consistent with noise exposure. The Board notes that service connection for hearing loss has been granted, based on the inservice noise exposure, and the post-service etiological link. The veteran contends that he has had tinnitus since service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins were a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must 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")). See Barr. Tinnitus is a disability which the veteran is competent to describe and report. The Board finds that the veteran's statements are credible as they are consistent with his inservice duties involving noise exposure. As noted, that noise exposure has been conceded by VA. Thus, the veteran's self-reported history of tinnitus is competent and credible. Thus, that evidence is probative. The veteran had tinnitus during service. The veteran currently has bilateral tinnitus. The veteran's statements of a continuous history of tinnitus are credible. One VA examiner opined that it was not related to service. The other VA examiner opined that bilateral tinnitus is related to inservice noise exposure. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In reviewing these opinions, the April 2005 VA examiner reviewed the claims file. He considered the veteran's report at that time of having had tinnitus for 15 years and reviewed the entrance and separation examination. This 15 year history is inconsistent with the rest of the record. The VA examiner did not address the inservice notation of tinnitus. The basis of his opinion that that current bilateral tinnitus was not "time locked to his military experience." Presumably, this meant that it did not necessarily begin during service. However, this statement is not clearly stated. With regard to the second July 2006 opinion, it is unclear if it was based on a review of the claims file. However, the veteran provided an accurate history of inservice noise exposure. Reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). The statements of the veteran, as made to the examiner, were credible and supported by the record. Thus, the record contained probative statements of the veteran dating tinnitus from service to the current time. The record contains two competent medical opinions. The Board finds that July 2006 opinion to be more probative. It is more probative because the July 2004 examiner did not address inservice tinnitus findings and the accurate history of the veteran having had tinnitus since service were not before the examiner. While the July 2006 examiner did not address inservice findings, the opinion was based on conceded inservice noise exposure with no significant post-service noise exposure. Since 38 C.F.R. § 3.303(d) provides for post-service diagnoses, the lack of a referral to inservice tinnitus findings is not dispositive in that case. Thus, in sum, the more probative opinion is that of the July 2006 examiner and supported by the veteran's probative statements. Accordingly, the most probative evidence establishes that bilateral tinnitus is attributable to service. Accordingly, service connection is warranted. ORDER Service connection for bilateral tinnitus is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs