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. (CONTINUED ON NEXT PAGE) ORDER Service connection for tinnitus is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs