Citation Nr: 0809662 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-36 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in North Little Rock, Arkansas. This case was previously before the Board in September 2007 when it was remanded for further development. The required development having been completed, this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The veteran has a current diagnosis of tinnitus. 2. Resolving all doubt in the veteran's favor, the veteran's tinnitus is related to his active military service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002); 38 C.F.R. §§3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to Service Connection Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required to establish an increase in disability. Cf. Davis v. Principi, 276 F. 3d 1341, 1346- 47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board notes that the regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310, was amended in September 2006. See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the Court, specifically Allen v. Brown, 7 Vet. App. 439 (1995). The prior regulation addressed whether a service connected disability was the cause of a secondary disability. The Allen decision provides for consideration of whether a service-connected disability aggravates a non-service- connected disability. The change in regulations includes the holding from Allen in a new section, 38 C.F.R. § 3.310(b). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 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 veteran. The veteran seeks service connection for tinnitus which he attributes to in-service acoustic trauma. The veteran reported in January 2005 and in November 2007 that he has had ringing in his ears ever since active service. In March and December 2004 the veteran was afforded VA Compensation and Pension (C&P) hearing examinations to determine whether it is at least as likely as not that his tinnitus was related to his military service. The veteran reported at the March 2004 VA examination that the onset of symptoms occurred ten years prior to the examination, twenty years after service. However, at the December 2004 VA examination, the veteran reported that the onset of symptoms occurred twenty years prior to the examination, ten years after service. At each examination, the examiner relied solely upon the veteran's subjective statements of the onset of symptoms and opined that it is "less likely than not that his reported tinnitus is related to his military service." Neither examiner considered whether the veteran's tinnitus was directly related to the reported acoustic trauma in- service or secondary to the service-connected hearing loss. In November 2007, the veteran was afforded a VA C&P hearing examination to determine the etiology of the veteran's tinnitus. The examiner stated that while in service, the veteran served as a HAWK missile crew man. The veteran worked in a "sound treated" instrument room and only participated in one HAWK missile firing. The examiner reported that the veteran indicated significant post service recreational noise exposure from shotguns and 22 caliber rifles as well as the use of a riding mower, chain saw, and back hoe. The examiner rendered the opinion that the veteran's "tinnitus is less likely as not a direct consequence of acoustic trauma during service." The examiner further opined that "the onset of the symptom of tinnitus is as likely as not a consequence of post service factors aggravating the service connected hearing impairment." The examiner stated that "it is more likely as not that tinnitus is a direct consequence of post service occupational and recreational noise exposure . [sic] acoustic trauma in service." In addition, the examiner reported that "it is more likely as not that the symptom became manifest as the service connected hearing impairment was aggravated and worsen[ed] by post service occupational and recreational activities." Lastly, the examiner opined that "it is more likely as not that the tinnitus is a direct consequence of post service noise exposure." The Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise- induced hearing loss. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Additionally, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Ch. 85, Inner Ear. In this case, the evidence does not reasonably disassociate the veteran's tinnitus from his service-connected bilateral hearing loss and noise exposure during service. The Board finds that, resolving doubt in favor of the veteran, the positive evidence is at least in a state of equipoise with the negative evidence. The C&P examination dated in November 2007 rendered the opinion that the veteran's tinnitus, while not directly due to acoustic trauma during service, was as likely as not due to the progressive worsening of the veteran's service-connected bilateral hearing loss. Therefore, service connection for tinnitus is warranted. See 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303. 3.310. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for tinnitus is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs