Citation Nr: 1003335	
Decision Date: 01/22/10    Archive Date: 02/01/10

DOCKET NO.  08-18 181	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Connecticut Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from September 1982 to 
December 1982, from February 1984 to March 1984, and from 
September 1985 to May 2005. 

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in December 2007 by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Hartford, Connecticut.  The December 2007 rating decision 
was a reconsideration of a July 2007 RO rating decision, 
subsequent to receipt of the Veteran's service treatment 
records in August 2007.  See 38 C.F.R. § 3.156(c).


FINDING OF FACT

The evidence is at least in equipoise as to whether the 
Veteran has recurrent bilateral tinnitus that began during 
active service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 
(2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (2000) sets forth the obligations 
of VA with respect to the duty to assist and includes an 
enhanced duty to notify a claimant as to the information and 
evidence necessary to substantiate a claim for VA benefits.  

First, VA has a duty to notify the Veteran of any information 
and evidence needed to substantiate and complete a claim.  38 
U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b).  
Second, VA has a duty to assist the Veteran in obtaining 
evidence necessary to substantiate a claim.  38 U.S.C.A. § 
5103A (West 2002); 38 C.F.R. § 3.159(c).  

As discussed in detail below, sufficient evidence is of 
record to grant the claim on appeal.  Therefore, no further 
notice or development is needed with respect to this appeal.


Analysis of Claim

The Veteran contends that he has recurrent tinnitus that 
began during active service.

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131.  With chronic disease 
shown as such in service so as to permit a finding of service 
connection, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service 
connected, unless clearly attributable to intercurrent 
causes.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity of 
symptomatology after discharge is required to support a claim 
of service connection.  When the disease identity is 
established (leprosy, tuberculosis, multiple sclerosis, 
etc.), there is no requirement of evidentiary showing of 
continuity.  38 C.F.R. § 3.303(b).  Service connection 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 order to prevail on the merits on the issue of service 
connection, there must be medical evidence of current 
disability; medical or, in certain circumstances lay, 
evidence of in-service incurrence or aggravation of a disease 
or injury; and medical evidence of a nexus between the 
claimed in-service disease or injury and the present 
disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 
2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007), 
the Court of Appeals for Veterans Claims (Court) stated that 
the requirement that a current disability be present is 
satisfied "when a claimant has a disability at the time a 
claim for VA disability compensation is filed or during the 
pendency of that claim . . . even though the disability 
resolves prior to the Secretary's adjudication of the 
claim." 

The standard of proof to be applied in decisions on claims 
for veterans' benefits is set forth in 38 U.S.C.A. § 5107 
(West 2002).  A veteran is entitled to the benefit of the 
doubt when there is an approximate balance of positive and 
negative evidence.  See 38 C.F.R. § 3.102.  When a veteran 
seeks benefits and the evidence is in relative equipoise, the 
veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  The preponderance of the evidence must be against 
the claim for benefits to be denied.  See Alemany v. Brown, 9 
Vet. App. 518 (1996).  

The Veteran's final continuous period of service was from 
September 1985 to May 2005.  

A September 1993 service treatment record recounts that the 
Veteran complained of "long ringing in ears x 1 month hx of 
cerumen buildup."  The Veteran was noted to have realized 
the problem when around loud music; he attempted to use ear 
drops which helped a little, and ceased listening to loud 
music.  The ringing sound was indicated to be in both ears, 
but moreso in the right ear.  The assessment was cerumen 
build-up.  Treatment was for the Veteran's ears to be flushed 
with debrox, hydrogen peroxide and a water pick.  The balance 
of the Veteran's service treatment records are silent for 
complaints of ringing in the ears.

In May 2006, one day less than one year after discharge from 
active service, the RO received the Veteran's claim for 
service connection for bilateral tinnitus.

At a VA general medical examination in October 2007, the 
Veteran provided a history of hearing loss as a result of 
being next to machinery and vehicles with loud noise daily, 
and of intermittent tinnitus.  He described the tinnitus as 
intermittent.  The general medical examiner cryptically 
noted, "Tinnitus:  Just after above incident developed 
tinnitus."  This may be construed as a medical nexus 
opinion.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 
2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).  That 
is, the October 2007 VA examiner appears to have noted his 
medical impression that the Veteran experienced tinnitus that 
had its onset during active service after an episode or 
period of noise exposure.  

At an October 2007 VA audiological examination, the Veteran 
described intermittent bilateral tinnitus, which he stated 
was not present at the time of the VA examination.  The 
diagnosis was intermittent bilateral tinnitus.  The 
audiological examiner did not provide an opinion as to 
whether the Veteran's recurrent tinnitus began during service 
or was related to any incident of service.

That service connection may be awarded for intermittent 
tinnitus is evident from the VA rating code for service-
connected disabilities, which provides that a 10 percent 
rating is warranted for "recurrent tinnitus."  See 38 
C.F.R. § 4.87, Diagnostic Code 6260.  Tinnitus that is 
recurrent may by definition be intermittent; the tinnitus 
need not be constant to qualify as a disability for VA 
compensation purposes.   

As to whether the evidence is sufficient to demonstrate that 
the Veteran experienced recurrent tinnitus during active 
service and chronically thereafter, the Court of Appeals for 
Veterans Claims has specifically held that a veteran is 
competent to testify that he experienced ringing in his ears 
in service and had experienced ringing in his ears ever since 
service.  See Charles v. Principi, 16 Vet. App. 370, 373-74 
(2002).  

The Veteran's credibility in stating that his intermittent 
tinnitus began during active service is significantly 
bolstered in two respects.  First, a "long" or one-month 
period tinnitus (depending how one interprets the medical 
notation) is documented in the service treatment records.  
Second, the Veteran conceded that his tinnitus was not 
present at his October 2007 VA examination, against his self-
interest insofar as this could be construed as evidence 
against his claim, but much to his credit insofar as his 
credibility is concerned.  

In sum, affording all reasonable doubt in the Veteran's 
favor, there is credible and competent evidence of 
intermittent ringing in the ears having begun during active 
service and to have continued chronically post-service, and 
medical nexus evidence diagnosing this condition as tinnitus 
and indicating that it began during active service.  
Accordingly, the Board finds that the evidence is at least in 
equipoise in demonstrating that entitlement to service 
connection for bilateral tinnitus is warranted.  See Shedden 
v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Charles v. 
Principi, 16 Vet. App. 370, 373-74 (2002); Hickson v. West, 
12 Vet. App. 247, 253 (1999).



ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs