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