Citation Nr: 1001461 Decision Date: 01/11/10 Archive Date: 01/22/10 DOCKET NO. 06-12 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 9, 1962, to December 22, 1962, and from November 1967 to September 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in part, denied the Veteran's claim of entitlement to service connection for tinnitus. In his April 2006 substantive appeal, VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. In April 2006 correspondence, the Veteran withdrew his hearing request. He has not since requested a hearing. FINDING OF FACT The competent evidence of record indicates that the Veteran's currently diagnosed tinnitus is etiologically related to his military service CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (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. A VCAA notice letter was sent to the Veteran regarding his claim in July 2005. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letter or VA's development of the claim in light of the fact that the Board is granting the claim. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board also notes the Veteran has been provided notice regarding degree of disability and effective date as required by the recent decision of the United States Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473 (2006) in a March 2006 letter. As discussed below, the Board is granting the Veteran's claim. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The Board is confident that if required, the Veteran will be afforded any additional appropriate notice needed under Dingess. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). In order to establish service connection for the 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) (2009). Analysis The Veteran essentially contends that his currently diagnosed tinnitus is related to his military service. As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), current disability, a September 2005 VA examination report noted the presence of tinnitus. Hickson element (1) is accordingly met for the claim. With respect to element (2), a review of service treatment records does not reveal a diagnosis of tinnitus. Accordingly, Hickson element (2) is not met with respect to disease. Turning to an in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. His service records show that he served in the artillery during both periods of service. The Veteran, as a lay witness, is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). There is nothing in the record to refute the Veteran's statements regarding in-service noise exposure; to the contrary, the record reasonably supports the history he provides. Thus, Hickson element (2) is also satisfied. With respect to crucial Hickson element (3), medical nexus, the record contains the September 2005 VA examination report, which indicated that it was not as least as likely as not that the Veteran's tinnitus was a result of noise exposure in service. The basis of this opinion was the Veteran's statement that onset of his disability was 15 to 20 years ago, or two decades after service. [Incidentally, the examiner found that hearing loss was at least as likely due to noise exposure during service.] As was discussed in the law and regulations section above, the medical nexus requirement may be alternatively satisfied via continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2009). Notably, in his July 2005 application for service connection, the Veteran indicated that he had "ear noises" since service. In statements subsequent to the September 2005 VA examination, the Veteran indicated that he was under pressure when questioned about the date of onset during the examination. He clarified that he has had tinnitus since service discharge but that his symptoms became more disabling in the last 15 to 20 years. The Board has no reason to doubt the Veteran's statements concerning continuity of tinnitus symptomatology since service. Therefore, Hickson element (3) has also been satisfied. Thus, all three elements have been satisfied. The benefit sought on appeal is granted. ORDER Service connection for tinnitus is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs