Citation Nr: 1743972	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  17-09 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

M. Rescan, Associate Cousel 


INTRODUCTION

The Veteran served on active duty with the United States Navy from November 1963 to March 1967.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA)
Regional Office (RO) in Phoenix, Arizona.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Tinnitus is related to the Veteran's active duty service.  


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The disposition of the claim decided below is fully favorable to the Veteran.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on this matter has been accomplished.   38 U.S.C.A. §§ 5103, 5103A.

II.  The Claim

The Veteran contends that his tinnitus is a result of his duties while serving in the Navy.  

In order to establish service connection for the claimed disability, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, a layperson is competent to identify tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

In evaluating the evidence, the Board is charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra.  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

As to a current disability, the Veteran has been diagnosed with tinnitus.  See September 2016 VA examination.  

As to the in-service incurrence, the Veteran stated that when he was on active duty, he was exposed to the loud noise associated with the 5" guns, the 50 caliber machine guns, hand guns, and the testing of live torpedoes.  See Veteran's October 5, 2016, lay statement.  

Turning to the lay statements in this case, the Veteran reported that the tinnitus had its onset in 2011 and it is always in the right ear.  See September 2016 VA examination.  Moreover, the Veteran stated that he did not have any issues with his hearing prior to his active duty years and he noticed that he began to have issues related to his hearing after he was exposed to the loud noises associated with serving on a Navy Destroyer.  See Veteran's October 2016 lay statement.  Furthermore, the Veteran's wife reported to VA that she remembered that the Veteran had issues with his hearing and ringing in his right ear dating back to 1970.  Specifically, the Veteran's wife stated that she would have to repeat what she had said and the Veteran would mention that the ringing in his right ear was an annoyance but he didn't do anything about it.  See Wife's October 2016 lay statement.  The Board finds the lay statements regarding observable symptoms of hearing loss and tinnitus to be both competent and credible evidence because the symptoms associated with tinnitus are observable by lay persons.  The statements provided by the Veteran and his wife demonstrate that he was exposed to acoustic trauma while in the service and has dealt with issues related to his hearing since he left active duty.  Thus, the Board places significant weight on these statements.  See Davidson supra; Jandreau, supra; Kahana, supra.  
Moreover, the Board has reviewed the Veteran's military personnel records and finds that that the Veteran's DD 214, which lists his Navy occupational specialty as 9206 (ASW Officer) is consistent with his reports of being exposed to acoustic trauma from cannons, machine guns, small arms fire, and torpedo explosions.  Thus, the Board finds that these records are credible evidence of the Veteran being exposed to acoustic trauma while on active duty and has placed significant probative weight on these records.  Davidson, supra.  

Moving on to the medical evidence at hand, the Veteran attended a VA examination for his bilateral hearing loss and tinnitus claims in September 2016.  Following the examination, the examiner stated that the Veteran was exposed to excessive noise/acoustic trauma while in service which is consistent with the Veteran's hearing loss.  However, in regards to the Veteran's tinnitus, the examiner opined that "there is a lack of evidence in the Veteran's claims file of any complaints or hearing loss during service and the time between service and the date of this evaluation is significant without evidence of any audiology treatment in the intervening years."  Based on that information, the examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of in-service military noise exposure/acoustic trauma.  See September 2016 VA examination.  

Simply put, the Board finds that this opinion has little if any probative value as it relates to the nature and etiology of the Veteran's disability.  The Board has reached this conclusion based on several factors.  First of all, the examination report is contradictory in nature because the examiner opined that the Veteran was exposed to acoustic trauma in service that was responsible for his hearing loss but that same acoustic trauma did not lead to the Veteran's tinnitus.  The examiner did not provide a thorough or well-reasoned analysis as to why the acoustic trauma the Veteran was exposed to could cause one disability and not the other.  Moreover, the examiner did not take into account the competent and credible lay statements that the Veteran provided and instead focused their opinion on the absence of any medical documentation since service.  Thus, the Board places little if any probative weight on this opinion as it relates to the nature and etiology of the Veteran's tinnitus.  Davidson, supra.  

In sum, the Board finds that the lay statements provided by the Veteran and his wife along with the Veteran's military personnel records are the most probative pieces of evidence in this case as to the nature and origin of the Veteran's disability.  These pieces of evidence indicate that the Veteran was exposed to acoustic trauma while on active duty and that he has had issues with his tinnitus since he left active duty service.  In reaching this conclusion, the Board has not overlooked the negative opinion provided during the VA examination but the Board finds the other evidence in this case to be more probative.  

Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 U.S.C.A. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310; see also Gilbert.


ORDER

Entitlement to service connection for tinnitus is granted.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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