Citation Nr: 1228343	
Decision Date: 08/17/12    Archive Date: 08/21/12

DOCKET NO.  06-06-172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for chronic tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel



INTRODUCTION

The Veteran had active service from October 1961 to June 1976 and additional periods of active duty for training.  The Veteran served in the Republic of Vietnam.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Phoenix, Arizona, Regional Office (RO) which, in pertinent part, denied service connection for tinnitus.  In January 2008, the Veteran withdrew his request for a Board hearing.

The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence.   

In March 2008, the accredited representative submitted a written statement which may be reasonably construed as an informal application to reopen the Veteran's claim of entitlement to service connection for hearing loss disability.  The issue has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it.  The issue is referred to the RO for appropriate action.  


FINDING OF FACT

Chronic tinnitus was initially manifested during active service.  


CONCLUSION OF LAW

Chronic tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303(d), 3.326(a) (2011).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on Department of Veterans Affairs (VA) to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (1) (2011).  In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits.  In the decision above, the Board grants service connection for chronic tinnitus.  As such action represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and to assist is necessary as to that issue.  

II.  Service Connection

Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  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) (2011).  

In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  The reasons for granting or denying service-connection in each case shall be recorded in full.  38 U.S.C.A. § 1154(b) (West 2002).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Veteran's service treatment records make no reference to chronic tinnitus or ringing of the ears.  The Veteran's service personnel records reflect that he served with the Army in the Republic of Vietnam and was awarded the Bronze Star.  

At a November 2004 VA audiological examination for compensation purposes, the Veteran presented a history of chronic tinnitus of four to five years duration.  The Veteran was diagnosed with chronic tinnitus.  The examiner opined that the "patient's tinnitus is not likely caused by or related to his inservice noise exposure, due to its recent onset."  

In his January 2005 notice of disagreement (NOD), the Veteran advanced that:  

I believe that the tinnitus (ringing in my ears) condition (problem) started as a direct result of [my] military tour in South Vietnam from 1972-1973; plus, the problem continued at Ft. Bliss [and] Ft. Huachuca.  During my military career, I was assigned to units engaged in heavy artillery, missiles, and heavy generators from Apr[il 19]62 to Jul[y 19]75.  ...  [T]he ringing and bell sounds are from my military career and still exist.  I was awarded the Bronze Star for being engaged against hostile forces in Vietnam.  

A February 2008 audiological evaluation from W. Jasin, Jr., M.D., states that the Veteran complained of tinnitus.  He presented a history of noise exposure.  The Veteran was diagnosed with "bilateral high frequency sensorineural hearing loss disability consistent [with] noise exposure [history]" and "subjective tinnitus consistent [with] hearing loss."  The doctor commented that he "cannot rule out service noise exposure [history] as a causative factor."  

The Veteran asserts that he experienced chronic tinnitus during active service secondary to his combat-related and other inservice noise exposure which has persisted to the present time.  The Veteran is competent to describe his experience of ringing in the ears during and after service.  See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation).  While the November 2004 VA audiological evaluation states that the Veteran reported tinnitus of four to five years' duration, the Veteran advanced in his NOD that his tinnitus had become manifest while he was in the Republic of Vietnam.  Dr. Jasin found the Veteran's chronic tinnitus to be consistent with his reported inservice noise exposure.  The Board has no basis to question the Veteran's credibility.  

The Veteran's ringing of the ears has been diagnosed as tinnitus by a competent audiological professional.  The Veteran has reported that he experienced ringing in his ears in service which continued thereafter.  His statements are found to be competent, credible and probative.  Given these facts, the Board finds that the evidence is in at least equipoise as to whether the Veteran's chronic tinnitus is etiologically related to active service.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for chronic tinnitus.  


ORDER

Service connection for chronic tinnitus is granted.  



____________________________________________
SONJA A. MISHALANIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs