Citation Nr: 0813210	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  06-12 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	John S. Berry, Esq.


ATTORNEY FOR THE BOARD

David T. Cherry, Counsel




INTRODUCTION

The veteran served on active duty from April 1968 to 
September 1972. 

Procedural history

This case comes to the Board of Veterans' Appeals (the Board) 
on appeal from a May 2005 rating decision of the Department 
of Veterans Affairs (VA) Regional Office in Seattle, 
Washington (the RO) in which service connection was denied 
for tinnitus.

Issues not on appeal

In a May 2005 rating decision, service connection for a heart 
murmur, post-traumatic stress disorder (PTSD), right ear 
hearing loss, and left ear hearing loss was denied.  To the 
Board's knowledge, the veteran has not expressed disagreement 
with those determinations.  Indeed, in an August 2005 
statement, the veteran's counsel indicated that he was only 
filing a notice of disagreement (NOD) with regard to the 
denial of tinnitus in the May 2005 rating decision.  


FINDING OF FACT

Competent medical evidence of record shows that the veteran 
had tinnitus in service, and that he currently has tinnitus.


CONCLUSION OF LAW

Tinnitus was incurred in military service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking service connection for tinnitus.

In the interest of clarity, the Board will initially discuss 
certain preliminary matters. The Board will then address the 
pertinent law and regulations and their application to the 
facts and evidence.

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  The VCAA also 
redefines the obligations of VA with respect to its statutory 
duty to assist claimants in the development of their claims.  

The VCAA is generally applicable to all claims filed on or 
after the date of enactment, November 9, 2000, or filed 
before the date of enactment but not yet final as of that 
date.  The VCAA is accordingly generally applicable to this 
case.  See Holliday v. Principi, 14 Vet. App. 280 (2000) [the 
Board must make a determination as to the applicability of 
the various provisions of the VCAA to a particular claim].  

Crucially, the RO informed the veteran of VA's duty to assist 
him in the development of his claim in letters sent in 
December 2004 and March 2006, which were specifically 
intended to address the requirements of the VCAA.  The 
veteran and his counsel have not contended that VCAA notice 
was in any way inadequate.

As is discussed below, the Board's decision has resulted in 
allowance of service connection for tinnitus.  It is not the 
Board's responsibility to assign an effective date therefor.  
The Board notes that the RO provided notice under Dingess v. 
Nicholson, 19 Vet. App. 473 (2006) regarding effective date 
in the March 2006 letter.  The Board is confident that should 
additional notice be required, such will be provided to the 
veteran and his counsel.

Relevant law and regulations

Service connection - in general

In general, service connection may be granted for disability 
or injury incurred in or aggravated by active military 
service.  38 U.S.C.A. § 1110 (West 2002).

In order to establish service connection for a claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical or, in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

Continuity of symptomatology

In order to show a chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support a claim.  There must be 
competent medical evidence unless the evidence relates to a 
condition as to which lay observation is competent to 
identify its existence.  See 38 C.F.R. § 3.303(b) (2007).

Analysis

The Board will apply a Hickson analysis.  Concerning element 
(1), current disability, a January 2005 VA examiner diagnosed 
tinnitus.  Hickson element (1),a competent medical diagnosis 
of the claimed current disability, is met.

Concerning Hickson element (2), in-service disease or injury, 
there is competent evidence that the veteran had tinnitus in 
service.  A September 1969 service medical record shows that 
the veteran had low-pitched tinnitus in the left ear.  A 
report of a January 1970 audiometric evaluation reflects the 
veteran's reporting of left ear tinnitus.  Hickson element 
(2), in-service disease or injury, is therefore satisfied.

With respect to Hickson element (3), medical nexus, there is 
no medical opinion, one way or the other, as to whether the 
currently diagnosed tinnitus is related to tinnitus reported 
during service.  However, the Board does not believe that a 
medical opinion is necessary to establish a connection 
between the two.  

As was discussed above in the law regulations section above, 
service connection may be granted based o continuity of 
symptomatology after service.  See 38 C.F.R. § 3.303(b) 
(2007).  In this case, the medical evidence shows that the 
veteran had tinnitus in service and that he still has 
tinnitus.  Although the matter of continuity of 
symptomatology for unknown reasons was not specifically 
raised by the veteran's attorney, the veteran himself 
arguably made such contention in his initial claim when he 
stated"  "I have lived with this condition".  

In light of the findings of tinnitus in service, the current 
diagnosis of tinnitus and the veteran's implicit contention 
that tinnitus existed continually after service, the Board 
finds that chronicity and continuity of tinnitus after 
service is established.  See 38 C.F.R. § 3.303(b) (2007).  
Accordingly, Hickson element (3) is satisfied.

In summary, the Board is of the opinion that the veteran has 
met all three requirements needed establish service 
connection for tinnitus.  Accordingly, the Board concludes 
that the relevant and probative evidence of record 
establishes that his tinnitus was incurred in service.  The 
benefit sought on appeal is accordingly allowed.




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ORDER

Service connection for tinnitus is granted.



____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs