Citation Nr: 0812149 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-06 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran (Appellant) INTRODUCTION The veteran served on active duty from July 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision (issued August 9, 2006) of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran appeared and testified at a personal hearing in August 2007 before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been added to the record. The record was held open an additional 60 days following the hearing to allow the veteran to submit private medical opinion evidence and lay statement. Additional evidence was received in August 2007. At the personal hearing, the veteran indicated his desire to waive initial RO consideration of this evidence, and also signed waivers of initial RO consideration with the additional evidence submitted in August 2007. The Board notes that in August 2007 the veteran submitted a claim for service connection for bilateral hearing loss. The RO is developing this issue, which is not an issue currently before the Board on appeal. FINDING OF FACT The veteran was exposed to acoustic trauma in service; experienced chronic tinnitus in service; bilateral tinnitus has been continuous since service separation; and the currently diagnosed tinnitus has been related by competent evidence to in-service acoustic trauma. CONCLUSION OF LAW Resolving reasonable doubt in the veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA notice letters in October 2005 and January 2006 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as the letters informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claims, and asked the appellant to send in any evidence in the appellant's possession that pertains to the claim. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The appellant was not provided with such notice in a March 2006 letter. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claim that VA has not sought. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. The evidence of record includes private audiological and medical opinion evidence, the veteran's statements and personal hearing testimony, and other relevant lay statement. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, personal hearing testimony, and arguments presented by the representative organization. Moreover, because the full benefit is being granted in this case (service connection for tinnitus), there can be no prejudice regarding VA's duty to notify or assist the veteran. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for Tinnitus Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also 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). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran contends that he now has tinnitus due to in- service noise exposures of spikes in broadcasting noise as a Morse code operator and on the firing range at Ft. Bragg. He contends that his current tinnitus was essentially chronic, if intermittent, in service following the broadcasting noise spikes in the ear phones while performing his monitoring duties. He also contends that his tinnitus has been chronic since service separation to the present. In addition, the veteran has presented competent medical opinion evidence relating the currently diagnosed tinnitus to in-service noise exposure. After a review of all the evidence of record, including the veteran's military occupational specialty of Morse Code operator, and the veteran's credible personal hearing testimony of acoustic traumas in service during broadcasting noise spikes and while firing on the rifle range without hearing protection, the Board finds that the veteran was exposed to acoustic trauma in service. The Board also finds that the veteran experienced chronic, if intermittent, tinnitus in service. Regarding in-service symptoms of tinnitus, the Board finds the veteran's personal hearing testimony on this question to be credible. In addition, the Board finds credible the veteran's testimony of continuous post-service symptoms of tinnitus. The veteran's testimony and assertion of continuous post-service symptoms of tinnitus are further corroborated by a lay statement from his ex-wife to the effect that the veteran had hearing problems, including tinnitus, soon after service separation, and that the veteran sought treatment for these problems. The remaining questions are whether the veteran now has a current disability of tinnitus, and whether the current tinnitus is related by competent medical evidence to the in-service exposure to acoustic trauma. On the question of current disability of tinnitus, the competent medical evidence reflects a diagnosis of tinnitus in February 1998, and an August 2007 private Dwight Vaught, M.D., reflects a current diagnosis of tinnitus. The veteran has also credibly testified regarding his current symptoms of tinnitus. The Federal Circuit has recently held 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, (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. Jandreau v. Nicholson, No. 07-7029, 2007 WL 1892301 (Fed. Cir. July 3, 2007). The Board further finds that the weight of the competent medical evidence relates the veteran's current tinnitus to in-service acoustic trauma. An August 2007 letter from a private physician, Dwight Vaught, M.D., reflects the veteran's history of in-service noise exposure and continuous post-service symptoms of tinnitus; current complaints and diagnosis of tinnitus; and an opinion that the currently diagnosed tinnitus was "secondary to noise exposure in the military." As indicated, the Board has also found to be credible the veteran's reported history of in-service noise exposure, in-service symptoms of tinnitus, and essentially continuous post-service symptomatology of tinnitus that serves as the basis for this opinion. The Court has held that where there is of record lay evidence of in-service tinnitus and of tinnitus ever since service and medical evidence of a current diagnosis, such evidence suffices to indicate that disability may be associated with . . . active service." Charles v. Principi, 16 Vet. App 370, 374 (2002). For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that tinnitus was incurred in service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs