Citation Nr: 1116912 Decision Date: 05/02/11 Archive Date: 05/10/11 DOCKET NO. 09-35 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from July 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO). The December 2008 rating action also denied service connection for bilateral hearing loss. This issue was the subject of a notice of disagreement (NOD) and was addressed in the statement of the case (SOC). The issue was also included in the substantive appeal. However, the Veteran indicated in a May 2010 written statement that he no longer wished to pursue this issue, and it was withdrawn. Therefore, consideration is limited to the issue listed on the first page of the present decision. 38 C.F.R. § 20.204 (2010). Accordingly, no issue pertaining to the Veteran's hearing loss is currently in appellate status before the Board, and the Board's current review is limited to the issue listed on the first page of this decision. FINDING OF FACT The Veteran's bilateral tinnitus is reasonably shown to have had its origins during his military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, bilateral tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). In view of the complete grant of the benefits awarded in this case, there is no need for additional development or notice. The Veteran is not prejudiced by the Board's appellate review. Law and Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was "noted" in service with post-service continuity of the same symptomatology and medical or lay evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In other words, a Veteran can establish continuity of symptomatology in cases where he/she cannot fully establish the in-service and/or nexus elements of service connection discussed above. See also Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In the present appeal, the Veteran maintains that his tinnitus is directly related to excessive noise exposure during service. Specifically, he asserts that he was exposed to loud noise during basic training in Fort Knox without ear protection. While serving in Vietnam he performed the duties of a combat engineer and was exposed to noise from demolitions and chainsaws without ear protection. He was also exposed to noise from C-4 and dynamite explosions on a regular basis. He reported ringing in his ears ever since service. See April 2009 NOD. Turning to the evidence of record, the Board finds that there is little controversy as to whether the Veteran was exposed to noise trauma in service. His DD 214 indicates that his military occupational specialty was that of a wheeled vehicle mechanic. Therefore his account of in-service noise exposure is credible and consistent with the circumstances of his service. See VBA Fast Letter 10-35 (September 2010). Thus, the Board concedes the Veteran's exposure to noise in service. Service treatment records (STRs), including the Veteran's separation examination conducted in April 1967, are negative for complaints, findings or treatment of tinnitus, and the Veteran did not otherwise provide information regarding noise exposure. As a result, these records do not affirmatively establish that tinnitus had its onset during military service. There are also no medical records immediately after the Veteran's service discharge that contain a diagnosis of tinnitus. In fact, the claims folder is devoid of any pertinent treatment records or other medical documents until a March 2010 VA examination report. At that time, the Veteran reported that, while in Vietnam, he was assigned to an Engineering Company and his duties included clearing trees and brush for air strips. He reported in-service noise exposure from heavy equipment, chainsaws, small arms, artillery fire, bombings, and "CO2" without hearing protection. He also reported exposure to noise from helicopters, grenades, rifle fire, and explosions during training, also without hearing protection. After military service the Veteran worked in factories, coal mines, and in maintenance with hearing protection. He reported a pre-service history of noise exposure from farming and recreational noise exposure from power tools, lawn equipment, and hunting. The Veteran described tinnitus almost daily and explained that it was most noticeable in the late evening. However, when asked, he indicated that he did not remember when the ringing in his ears began or what might have caused it. The examiner essentially concluded the tinnitus was less likely as not caused by or a result of military service on the basis that the Veteran's hearing was normal at separation and he could not remember when the tinnitus began or the etiology. In determining whether service connection is warranted for disease or disability, VA must establish whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Veteran's tinnitus was not diagnosed until many years after service, the Board is satisfied that it cannot be clearly dissociated from his military service. In this case, the examiner based his conclusion that the Veteran's tinnitus was "less likely" related to his military service, primarily due to the Veteran's failure or inability to pinpoint its onset or etiology. However, of greater significance to the Board in this matter is the Veteran's conceded in-service noise exposure (as is confirmed by his duties during service) as well as his competent description of continued ringing in his ears since service (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As noted previously, in his April 2009 NOD, the Veteran clearly indicated that his tinnitus began as a result of noise exposure during basic training and while serving in Vietnam and that it has been constant since then. Thus, while the medical evidence of record does present questions, it is not so sufficient as to totally reject the Veteran's contentions. In light of these facts, the Board finds that the 2010 VA examiner's opinion disassociating the Veteran's tinnitus from his active duty is not particularly probative. Of particular significance to the Board in this matter are the Veteran's conceded in-service noise exposure and his competent assertions of ringing in his ears since active duty. Consequently, the Board resolves all benefit of the doubt in the Veteran's favor and grants service connection for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral tinnitus is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs