Citation Nr: 1327776 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-02 441 ) 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: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2012, the Veteran testified at a video conference hearing before the undersigned. The case was previously before the Board in April 2013, when it was remanded for examination of the veteran and medical opinions. The requested development has been completed. This appeal was processed using the Veterans Benefits Management paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had noise exposure during active service. 2. The Veteran is service-connected for sensorineural hearing loss. 3. The Veteran has a current diagnosis of tinnitus. 4. The Veteran's complaints of tinnitus cannot be reasonably disassociated from his noise exposure during service and his service-connected sensorineural hearing loss hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 101(16) , 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102 , 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran claims entitlement to service connection for tinnitus. He claims that noise exposure during active service caused this disability. He contends that he was exposed to loud noise from gun and artillery fire during his military service. Specifically, he claims that he served as a crewman operating a 155 millimeter howitzer. He testified that he has had symptoms of tinnitus for many years. Historically, the Veteran served on active duty in the Army from September 1954 to September 1957. His report of separation, Form DD 214, noted that he served as an artillery crewman. Thus, the record clearly establishes that the Veteran was exposed to noise during service. Unfortunately, almost all of the Veteran's service treatment records have been destroyed in a fire. The one exception, his June 1957 separation examination, noted that his ears were normal. It also noted that he exhibited hearing acuity of 15/15, bilaterally, on whispered voice testing. In April 2009, a VA audiology Compensation and Pension examination was conducted. The examination report noted the Veteran's history of in-service noise exposure, and his current complaints of having difficulty understanding conversation with noise in the background. An audiological evaluation revealed bilateral sensorineural hearing disability. The VA examiner also noted that the Veteran had not had any tinnitus for the past several years. In December 2012, a video conference hearing was conducted before the Board. At the hearing, the Veteran testified that he started to first experience ringing in his ears after firing missions while in service, and that he continued to have intermittent tinnitus ever since. The Veteran's spouse testified that the Veteran has had problems with his hearing since she first met him 35 years ago. In January 2013, the Veteran submitted a January 2013 private audiological evaluation which noted the Veteran's current complaints of intermittent tinnitus. It also noted a diagnosis of bilateral sensorineural hearing loss. In June 2013, another VA audiology Compensation and Pension examination of the Veteran was conducted pursuant to an April 2013 Board remand. The objective findings of this examination revealed a diagnosis of sensorineural hearing loss. Service connection for bilateral sensorineural hearing loss was granted based upon the evidence contained in this examination report. With respect to tinnitus, the examination report indicated that the "Veteran reports tinnitus began 7-8 years ago. It is bilateral. It is periodic, occurring 2-4 times per week and lasting less than 1 minute in duration." However, the examiner's medical opinion was that it was less likely than not (less than 50% probability) that the tinnitus was caused by or a result of military noise exposure. The examiner's rationale was that "Veteran reports onset of tinnitus as being 7-8 years ago which is well past his separation from military service." The Board notes that the examiner did not indicate an opinion as to whether the claimed tinnitus was related to, or caused by the service-connected sensorineural hearing loss. The Director of the VA Compensation and Pension Service also observed in Training Letter 10-02 that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. The training letter further states that the onset of tinnitus may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered. In this case, the April 2013 VA examiner stated that tinnitus was not likely as not caused by the Veteran's military noise exposure; however, this was based upon the Veteran's report of onset of symptoms being approximated in the past 7 to 8 years. The examiner did not discuss other possible causes, including whether the Veteran's tinnitus may be due to his service-connected sensorineural hearing loss, or whether it was delayed onset from the noise exposure during service. Moreover, the Veteran was much more specific in his hearing testimony indicating symptoms of tinnitus began during service. The record does not reveal that the examiner considered this testimony related to onset of tinnitus when offering the opinion. The law does not require evidence of an in-service disability; rather, there need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the Veteran's credible reports of the onset of tinnitus symptoms during service, and the presence of service-connected bilateral sensorineural hearing loss, his current tinnitus cannot be reasonably disassociated from his hearing loss or his in-service noise exposure. Accordingly, service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs