Citation Nr: 1313312	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  12-01 985	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from January 1951 to December 1952.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Louisville, Kentucky, Regional Office of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for tinnitus.  The Montgomery, Alabama, VA Regional Office (RO) is the agency of original jurisdiction over the current appeal.

In a March 2013 videoconference hearing between the RO and the Board, the Veteran, accompanied by his representative, presented oral testimony in support of his claim before the undersigned Veterans Law Judge.  A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration.

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).
  

FINDINGS OF FACT

The Veteran's tinnitus is etiologically related to his service-connected bilateral hearing loss.  


CONCLUSION OF LAW

Tinnitus is proximately due to, or is the result of service-connected bilateral hearing loss.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310(a) (2012).   



REASONS AND BASES FOR FINDINGS AND CONCLUSION

As will be further discussed below, the Veteran's claim of entitlement to service connection for tinnitus is being granted in full.  Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thusly, there is no need to engage in any analysis with respect to whether the requirements of the VCAA and VA's duties to notify and assist have been satisfied concerning the appeal of this issue.

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102 (2012).

To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran's DD 214 indicates that he served in the United States Army in an armored infantry battalion in the early 1950s.  He filed his original claim for service connection for hearing loss and tinnitus in January 2010.  In his oral and written testimony in support of his claim, he reported in-service exposure to noise from small arms fire during training and armored vehicle engines while carrying out his duties as a crewman on an armored half-track.  He stated that he was exposed to minimal or no noise in his post-service career as a civil engineer.  He also testified that he experienced onset of tinnitus symptoms during college, very shortly after his discharge from active duty.  

The report of a May 2010 VA audiological examination shows that the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus.  Although the examiner stated that it was as likely as not that the Veteran's hearing loss was caused by his aforementioned military noise exposure, the examiner declined to present a nexus opinion with regard to tinnitus, stating that she could not determine its etiology without resorting to speculation.  

By rating decision of June 2010, the Veteran was granted service connection and a 40 percent evaluation for bilateral hearing loss.  

The available medical records, including a service separation examination report dated in December 1952, contain no report of tinnitus, and there is no post-service medical evidence demonstrating tinnitus until a private treatment report dated in 2003.  The clinical and testimonial evidence does not show chronic tinnitus in service, or continuity of symptoms after service, as would permit direct service connection.  In this regard, the Board notes that the Veteran has testified to onset of tinnitus symptoms, which he described as a ringing in his ears, around the time he started college after separating from active duty.  Although the evidence weighs against a finding of service connection for tinnitus on a direct basis, consideration must also been given to secondary service connection, which may be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).

As previously noted, the findings of the May 2010 VA audiological examination show that the Veteran's service-connected bilateral hearing loss is sensorineural in nature.  The examination report presents clinical findings and diagnoses that objectively establish the presence of tinnitus.  According to some medical authorities, tinnitus may result from sensorineural hearing loss.  See 2 Cecil, Textbook of Medicine, § 464 at 2119-2120 (18th ed. 1988).  Thusly, it appears as likely as not that the Veteran's tinnitus is caused by his service-connected bilateral sensorineural hearing loss, and he is to be given the benefit of the doubt on this point.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  For these reasons, the claim of entitlement to service connection for tinnitus will be allowed.  


ORDER

Service connection for tinnitus is granted.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs