Citation Nr: 0812296 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-03 397A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss, for the period from May 28, 2003, to July 10, 2007. 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, from July 11, 2007. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: John E. Howell, Esq. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from February 1964 to August 1969. He had subsequent service in the New Mexico National Guard, reportedly from April 1970 to April 1989. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial zero percent rating, effective May 28, 2008. In addition, the RO denied service connection for tinnitus. The veteran appealed the RO's decision. Before the matter was certified to the Board, in a January 2008 rating decision, the RO increased the rating for the veteran's service-connected bilateral hearing loss to 10 percent, effective July 11, 2007. Although an increased rating was granted, the issue remains in appellate status, as the maximum rating has not been assigned, nor has the veteran withdrawn his appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Moreover, given the RO's actions, complete adjudication of the veteran's claim now requires an analysis during two discrete time periods, as set forth above on the cover page of this decision. FINDINGS OF FACT 1. Prior to July 11, 2007, audiological evaluation showed that the veteran had Level II hearing in the right and left ears. 2. Audiological evaluation conducted on July 11, 2007, showed that the veteran had Level IV hearing in the right ear and Level III hearing in the left ear. 3. The veteran was exposed to acoustic trauma during active duty in connection with his military occupational specialty as a weapons instructor. 4. The veteran's tinnitus is as likely as not the result of noise exposure in service or associated with his service- connected noise-induced sensorineural hearing loss. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss, for the period from May 28, 2003, to July 10, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2007). 2. The criteria for an initial rating in excess of 10 percent for bilateral hearing loss, from July 11, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2007). 3. Resolving reasonable doubt in favor of the veteran, tinnitus was incurred during active service or is proximately due to or the result of his service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In Dingess, the Court held that in cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that in increased rating claims, section 5103(a) requires that VA inform the claimant that in order to substantiate the claim, he or she must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, by June 2003, March 2006, and June 2007 letters, the RO notified the veteran of the information and evidence needed to substantiate a claim of service connection, establish a disability rating, and an effective date, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The June 2007 letter also advised the veteran to submit or identify any additional information that he felt would support his claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). While all of these letters were not provided to the veteran prior to the initial decision on his claim, the RO, after issuing these letters, reconsidered the veteran's claims in a January 2008 Supplemental Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); Medrano v. Nicholson, 21 Vet. App. 165 (2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Although this is an initial rating case and not an increased rating case, the Board has considered that the VCAA letters discussed above do not contain the level of specificity delineated by the Court in Vazquez-Flores, particularly the specific rating criteria necessary for entitlement to a higher disability rating. Nonetheless, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice or otherwise affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In that regard, the Board notes that the January 2006 Statement of the Case contained all the pertinent criteria for rating hearing loss disabilities. Thus, a reasonable person could be expected to understand from the notice what was needed to substantiate a claim for a higher rating. Vazquez-Flores, supra. Moreover, after providing this notice to the veteran, the RO reconsidered the claim, including in the January 2008 Supplemental Statement of the Case. The Board also notes that during the pendency of these claims, the veteran has been represented by counsel, who is well aware of the requirements of the VCAA and the elements needed to substantiate the veteran's claims, and he has submitted evidence and argument on several occasions during the course of this appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that VCAA notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton, 20 Vet. App. at 438 (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a VCAA notice error). In none of the communications submitted by the veteran's attorney has the issue of prejudice due to insufficient VCAA notification been raised. In appeals to the Board, claimants should allege specific errors of fact or law, see 38 U.S.C. § 7105(d)(5), and counsel are expected to present those arguments they deem material and relevant to their clients' cases. See MODEL RULES OF PROF'L CONDUCT R. 1.1 ("A lawyer shall provide competent representation to a client."); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to sympathetic reading below). For the reasons discussed above, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, a portion of the veteran's service medical records are on file, as are post-service clinical records submitted by the veteran. Although complete service medical records are not on file, in light of the favorable decision below regarding the claim of service connection for tinnitus, the Board finds that additional efforts to obtain complete service medical records are not necessary. With respect to post-service medical evidence relevant to the veteran's claim for a higher rating for hearing loss, despite being given the opportunity to do so, the veteran has neither submitted nor identified any additional post-service VA or private clinical records pertaining to his claims. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007). Indeed, in an April 2006 letter, the veteran indicated that he had no additional evidence to submit. The veteran has also been afforded two VA medical examinations in connection with his claims. 38 C.F.R. § 3.159(c)(4) (2007). The Board finds that the reports of these examinations provide the necessary medical opinions as well as sufficient reference to the pertinent schedular criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). The Board finds that an additional VA medical examination is not warranted. The veteran has not argued otherwise. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification and development duties to the veteran. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further notification or development action is necessary on the issues now being decided. Neither the veteran nor his attorney has argued otherwise. Background Service medical records pertaining the veteran's period of active duty are not of record. However, his service personnel records show that his duties during this period included marksmanship and rifle instructor, as well as range instructor. There is therefore ample evidence of in-service acoustic trauma while on active duty. Service medical records pertaining to the veteran's period of service in the New Mexico National Guard show that at quadrennial examinations performed between May 1974 and June 1986, high frequency sensorineural hearing loss was noted, bilaterally. On reports of medical history completed by the veteran in connection with these examinations, he consistently reported a history of hearing loss since active duty. In May 2003, the veteran submitted an application for VA compensation benefits, seeking service connection for hearing loss and tinnitus. In support of his claim, the veteran submitted a May 2003 letter from a private otolaryngologist, who indicated that she had examined the veteran in August 2001 and in May 2003. On both occasions, he complained of tinnitus and hearing loss. Audiograms showed noise-induced sensorineural hearing loss, although specific puretone findings were not reported. The private physician noted that upon questioning the veteran, she had learned that he had worked on the firing range while in the Army and National Guard, with on and off hearing protection. She indicated that the veteran's current hearing loss was due to noise-induced sensorineural hearing loss. In a July 2003 statement, the veteran indicated that he had served as a range instructor and range OIC during active duty. He indicated that he thereafter joined the National Guard, where he continued to work on the firing line for approximately eight additional years. He indicated that it was his belief that the noise from these duties caused his current hearing problems. In connection with his claim, the veteran was afforded a VA medical examination in July 2003. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 80 80 75 LEFT 25 40 70 70 70 The four-frequency average pure tone thresholds were 70 on the right and 63 on the left. Speech audiometry revealed speech recognition ability of 96 percent, bilaterally. The examiner indicated that based on the veteran's duties during service, it was reasonable to assume that he had been exposed to hazardous noise during service. He indicated that the veteran's current moderately severe bilateral sensorineural hearing loss was therefore related to service. The examiner indicated that "the veteran does not report tinnitus, therefore no opinion on tinnitus is needed." Based on this evidence, in an August 2003 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial zero percent rating, effective May 28, 2003, the date of receipt of his claim. The RO denied service connection for tinnitus, finding that the record showed that the veteran did not currently have tinnitus. The veteran appealed the RO's determination, arguing that a higher rating was warranted. He also noted that he had complained of tinnitus at his May 2003 private examination and he should be given the benefit of the doubt as to whether he currently had tinnitus. In connection with his appeal, the veteran submitted private clinical records showing that in March 2006, he sought treatment for worsening hearing loss and tinnitus. The diagnoses were hearing loss and tinnitus and hearing aids were strongly recommended. At a VA medical examination in July 2007, the veteran reported gradual deterioration in his hearing acuity for the past 45 years. He also reported constant tinnitus in both ears. The veteran reported a history of noise exposure in the Army and National Guard. He denied nonmilitary noise exposure. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 75 75 70 LEFT 20 50 80 75 80 The average four-frequency pure tone thresholds were 66 on the right and 71 on the left. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 88 percent in the left ear. The examiner concluded that because the veteran did not complain of tinnitus at the previous VA medical examination in July 2003, his current tinnitus was not felt to be due to military noise exposure, given the significant time delay in reporting tinnitus. In a January 2008 rating decision, the RO increased the rating for the veteran's hearing loss to 10 percent, effective July 11, 2007, the date of the VA medical examination showing decreased hearing acuity. The denial of service connection for tinnitus was confirmed on the basis that the veteran's current tinnitus was not shown to be related to service. Higher ratings for bilateral hearing loss Applicable Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, there is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown--that the present level of the veteran's disability is the primary concern in an claim for an increased rating and that past medical reports should not be given precedence over current medical findings--does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rather, where a veteran appeals the initial rating assigned for a disability, as in the instant case, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Under VA regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2007). The regulatory provisions also provide two circumstances under which alternative tables can be employed. One is where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels or greater. The second is where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86 (2007). Analysis Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss, for the period from May 28, 2003, to July 10, 2007. For the period from July 11, 2007, a 10 percent rating is appropriate, but not higher. As discussed above, the July VA audiometric examination showed that the veteran had an average pure tone threshold of 70 decibels in the right ear with speech discrimination of 96 percent correct. He had an average pure tone threshold of 63 decibels in the left ear with speech discrimination of 96 percent correct. The only possible interpretation of this examination under the regulations is that the veteran's hearing loss was at Level II in both the right and left ears. Therefore, a compensable rating would not be warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board considered the provisions of 38 C.F.R. § 4.86, but the results of this audiometric examination clearly show that these provisions are not applicable. On July 11, 2007, however, the veteran again underwent VA medical examination. Audiometric testing performed on that day showed that the veteran's hearing acuity had decreased. He was shown to have an average pure tone threshold of 66 decibels in the right ear with speech discrimination of 80 percent correct. He had an average pure tone threshold of 71 decibels in the left ear with speech discrimination of 88 percent correct. Under the tables at 38 C.F.R. § 4.85, Diagnostic Code 6100, the veteran is now shown to have, as of July 11, 2007, Level IV hearing in the right ear and Level III hearing in the left ear, providing a 10 percent rating. While the Board has reviewed the veteran's claims folder in its entirety, there is no other probative evidence of record showing that his hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluations discussed above. For these reasons and bases, the Board finds that the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss, for the period from May 28, 2003, to July 11, 2007. For the period from July 11, 2007, a 10 percent rating is appropriate, but not higher. The preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent from July 11, 2007. In reaching this decision, the Board has considered the veteran's statements regarding the severity of his hearing loss and the fact that his private physician has recommended that he wear hearing aids. Such factors, however, do not provide sufficient evidence on which to award a higher rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the ratings currently assigned. The Board has also considered whether an extraschedular rating is warranted with respect to the veteran's bilateral hearing loss. Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of the veteran's claim for an increased rating). However, after reviewing the record, the Board finds that there is no basis for further action on this question. There is no objective evidence of record demonstrating that the veteran's service- connected hearing loss markedly interferes with his employment, beyond that contemplated by the rating schedule. Likewise, there is no evidence of record showing that he has been frequently hospitalized due to hearing loss. Indeed, it does not appear that he has been hospitalized for this disability at all since his separation from service. Consequently, the Board finds that no further action on this matter is warranted. Service connection for tinnitus Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis In this case, the RO has granted service connection for hearing loss based upon the VA examiner's July 2003 opinion that the veteran's hearing loss was due to exposure to acoustic trauma during service. The RO has denied service connection for tinnitus, noting that the veteran denied tinnitus at the July 2003 VA medical examination. In pursuing his claim, however, the veteran has made statements that he developed tinnitus as a result of acoustic trauma during service. He has also repeatedly reported tinnitus in clinical settings, both before and after the July 2003 VA medical examination. The Board finds the veteran's statements in this case are credible. In addition, the Board notes that tinnitus is subjective, and the kind of condition to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Moreover, the fact that the veteran has been granted compensation for a service-related hearing loss adds to the credibility of his contention that his tinnitus is related to service because "an associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. With regard to the latter, the medical evidence of record reflects that the veteran's hearing loss is noise-induced, i.e., a result of his exposure to acoustic trauma during service. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Cha. 85, Inner Ear. The evidence unfavorable to the claim for service connection in this case consists of the July 2007 VA medical opinion concluding that the veteran's current tinnitus was unrelated to service, as he had denied tinnitus at the July 2003 VA medical examination. The examiner explained that in light of the "significant time delay" between the onset of the veteran's tinnitus and his military service, a causal connection was not likely. The positive evidence of record consists of the fact that the veteran is service-connected for bilateral hearing loss that has been etiologically linked to noise exposure during his active service and that he continues to assert that he has experienced tinnitus intermittently since service. While the veteran may not have been experiencing tinnitus constantly since service, including at the time of his July 2003 VA medical examination, the Board finds that there is sufficient evidence upon which to conclude that he has experienced at least continued bouts of intermittent tinnitus since service. In that regard, the Board notes that the veteran complained of tinnitus during private examinations in 2001 and 2003, as well as at his 2007 VA medical examination. Thus, based on the veteran's statements, the VA examiner's report linking the veteran's hearing loss to service, and the provisions from The Merck Manual noted above, the Board concludes that evidence for and against the claim for service connection for tinnitus is at least in approximate balance. In other words, the Board finds, based on this record, that the veteran's tinnitus is as likely the result of his noise exposure in service or associated with his service-connected noise-induced hearing loss as it is the result of some other factor or factors. Accordingly, the Board will resolve the benefit of the doubt in favor of the veteran in this case as the law requires and grant service connection for tinnitus. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). ORDER Entitlement to an initial compensable rating for bilateral hearing loss, for the period from May 28, 2003, to July 10, 2007, is denied. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, from July 11, 2007, is denied. Entitlement to service connection for tinnitus is granted. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs