Citation Nr: 0113204 Decision Date: 05/09/01 Archive Date: 05/15/01 DOCKET NO. 00-21 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran retired in June 1967 after 20 years of active military service. This matter is before the Board of Veterans' Appeals (Board) from a September 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for tinnitus. The September 1999 rating decision also denied the veteran's claims of service connection for right and left eye disorders as not well grounded. However, the veteran only initiated an appeal to the denial of tinnitus. Nevertheless, the Board notes that Section 7(b) of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), provides that cases denied as not well grounded which became final after July 14, 1999, may be readjudicated upon the request of the claimant or the Secretary's own motion. General Counsel for VA held in a precedential opinion that the agency of original jurisdiction (i.e., the RO) should first readjudicate a claim under section 7(b) of the VCAA. VAOPGCPREC 3-2001. The precedent opinions of the VA General Counsel's Office are binding upon the Board. 38 U.S.C.A. § 7104 (West 1991 & Supp. 2000). Accordingly, this matter is referred to the RO for appropriate action. FINDINGS OF FACT The veteran's tinnitus cannot be clearly disassociated from his service-connected bilateral sensorineural hearing loss. CONCLUSION OF LAW Tinnitus is proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.310 (a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition to the rules of service connection stated above, service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The law provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), to be codified at 38 U.S.C.A. § 5103A. Further, the Secretary shall notify a claimant of the evidence necessary to substantiate a claim for benefits. Id. to be codified at 38 U.S.C.A. § 5103. The Board notes that the RO did not have the benefit of the explicit provisions of the VCAA when it adjudicated the case below. VCAA, among other things, eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Although the RO denied the tinnitus claim as not well grounded, the Board concludes that no additional development is required under the VCAA in that the veteran is entitled to a grant of service connection for tinnitus. The veteran has contended that he has tinnitus due to in- service acoustic trauma. He has also asserted that his tinnitus is secondary to his service-connected bilateral sensorineural hearing loss. The veteran's service medical records contain no diagnosis of or treatment for tinnitus during active service, nor complaints of acoustic trauma. However, there is evidence of hearing loss during service. For example, the veteran's January 1967 retirement examination includes audiometric findings which reflect a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. Moreover, it was stated on the retirement examination that there was decreased hearing loss in the high frequencies (3,000 to 6,000 Hertz), and that it had been present since at least March 1957. Service connection is currently in effect for bilateral hearing loss, to include high frequency hearing impairment. Various post-service medical records are also on file from Wilford Hall USAF Medical Center, and the Robert L. Thompson Strategic Hospital, which show treatment for sensorineural hearing loss. Also, one of the Wilford Hall medical records noted that the veteran was positive for tinnitus. Similarly, at a November 1999 VA audio examination, the veteran reported constant left ear tinnitus. He described the tinnitus as a high-pitched fluttering sound that was first noted in March 1999. The veteran has submitted medical treatise evidence in the form of a document downloaded from the internet, apparently from THE MERCK MANUAL website, entitled "Noise-Induced Hearing Loss." Among other things, this evidence stated that high-frequency tinnitus usually accompanied the hearing loss. In a February 2001 statement, the veteran's representative cited to THE CECIL TEXTBOOK OF MEDICINE, to support the contention that both sensorineural hearing loss and tinnitus may be caused by acoustic trauma. Therefore, the representative contended that the pathology underlying the current tinnitus could not be clearly disassociated from the sensorineural hearing loss. The Court has held that, in determining whether a medical article or treatise evidence provides a nexus between a current disability and active service, that such evidence, standing alone, is sufficient if it discusses generic relationships with a degree of certainty such that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509 (1998). Here, the Board finds that the above medical treatise evidence is sufficient to provide a nexus between the veteran's tinnitus and his service-connected hearing loss, particularly considering his history of inservice acoustic trauma and the fact that his service- connected bilateral hearing loss includes a high frequency hearing deficit. Further, the Board notes that no medical or scientific evidence is on file which refutes the medical article evidence noted above. The Court has long maintained that the Board cannot reject medical evidence, or reach an opposite conclusion, based solely on its own unsubstantiated opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Based on the foregoing, and resolving all reasonable doubt in favor of the veteran, the Board concludes that the pathology underlying the veteran's tinnitus cannot be clearly disassociated from his service-connected bilateral sensorineural hearing loss. See 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus as secondary to his service-connected hearing loss is warranted. 38 C.F.R. § 3.310(a). ORDER Entitlement to service connection for tinnitus is granted. R. F. WILLIAMS Member, Board of Veterans' Appeals