Citation Nr: 0812156 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-12 862 ) 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: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and his spouse INTRODUCTION The veteran served on active duty from September 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The veteran appeared and testified at a personal hearing in December 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. Additional evidence was received January 9, 2008 with RO waiver of initial consideration. The Board notes that the issue of service connection for bilateral hearing loss is not an issue before the Board on appeal. The veteran claimed service connection for bilateral hearing loss in March 2006; this issue was adjudicated in June 2006; a statement of the case was issued in January 2008; and the record does not reflect that a substantive appeal was received from the veteran within 60 days of issuance of the statement of the case. The Board also notes that service connection for post- traumatic stress disorder (PTSD) was granted during the pendency of this claim in a rating decision that was issued on May 18, 2007. The veteran has one year of notice of this decision to appeal the initial disability rating of 50 percent that was assigned for PTSD. FINDING OF FACT The veteran was exposed to acoustic trauma in service, including during combat; experienced tinnitus in service; bilateral tinnitus has been continuous since service separation; the current bilateral tinnitus is consistent with the circumstances, conditions, or hardships of in-service combat; and the weight of the competent medical evidence is in relative equipoise on the question of whether current tinnitus is related 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, 1110, 1154(b), 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). A July 2005 VA notice letter satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as the letter 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 claim, and asked the appellant to send in any evidence in the appellant's possession that pertains to the claim. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claims 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 issues on appeal, and that VA has satisfied the duty to assist. The evidence of record includes VA treatment records, VA audiological examination report, private audiological and medical opinion evidence, the veteran's statements, and the veteran's and spouse's personal hearing testimony. 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. § 1110; 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. § 1110; 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). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war the Secretary shall accept as sufficient proof of service- connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b). The veteran contends that he now has tinnitus due to multiple in-service noise exposures, including during combat operations and enemy attacks on his base. He contends and testified that his current tinnitus was chronic in service following aircraft engine noise and artillery explosions. He also contends and testified that his tinnitus has been chronic since service separation to the present. After a review of all the evidence of record, including the veteran's military occupational specialty of aircraft mechanic specialist, medals reflecting participation in campaigns in Vietnam, established evidence of being shot at by enemy fire in 1968, by shelling of enemy mortar rounds on the veteran's base in April 1969 that included damage to aircraft, and the veteran's credible personal hearing testimony of multiple acoustic traumas in service, the Board finds that the veteran was exposed to acoustic trauma in service, including as part of the combat against the enemy; therefore, the element of in-service exposure to acoustic trauma has been established. The remaining questions are whether the veteran now has a current disability of tinnitus that is consistent with the circumstances, conditions, or hardships of in-service combat, or is otherwise related by competent medical evidence to the in-service exposure to acoustic trauma. The Board finds that the veteran experienced chronic tinnitus in service. Regarding in-service symptoms of tinnitus, the Board finds the veteran's personal hearing testimony on this question credible, and that tinnitus in service following periods of acoustic trauma from gun fire and mortar explosions is consistent with the conditions and circumstances of in-service combat, notwithstanding the absence of official service medical record evidence of complaints of tinnitus in service. In addition, the Board finds credible the veteran's testimony of tinnitus - described as ringing in his ears similar to crickets or grasshoppers - following his established and routine exposures to aircraft noise as part of his duties of aircraft mechanic. The Board notes that at service separation examination the veteran was asked about ears and hearing problems, but was not asked about tinnitus or symptoms of ringing in the ears. The Board also finds to be credible the veteran's and his wife's personal hearing testimony on the question of continuous post-service symptoms of tinnitus, even though there was no medical record evidence of tinnitus for many years after service. The Board notes that there is no medical history of record in the years after service that shows that the veteran was asked whether he had tinnitus. On the question of current disability of tinnitus, the competent medical evidence records the presence of tinnitus for several years. The veteran and his spouse have also credibly testified regarding the veteran's 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 United States Court of Appeals for Veterans Claims (CAVC or 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). The Board finds that the veteran's current bilateral tinnitus is consistent with the circumstances, conditions, or hardships of in-service combat. In addition, the weight of the competent medical evidence is in relative equipoise on the question of whether current tinnitus is related to in- service acoustic trauma. A June 2006 VA examination report offered the opinion that it was unlikely ("less likely than not") that the veteran's tinnitus was related to military service; however, this opinion was based only on a partial history, as it only considered the evidence of tinnitus that was recorded in the medical records, and did not include the veteran's credibly reported history of in-service chronic symptoms of tinnitus or the credible history of continuous post-service symptoms of tinnitus. The veteran submitted a private audiologist's opinion dated December 18, 2007 that noted the veteran's history of acoustic trauma in service, and the several year history of tinnitus, and offered the opinion that that it was "with great certainty that" the veteran's "tinnitus at this date is due to his service in Vietnam and the exposure to noise that he has sustained." 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. §§ 1154(b), 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