Citation Nr: 1319284 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-00 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from June 1990 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. The Board previously denied the Veteran's claim in a November 2008 decision, and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2010, the Veteran, through an attorney, and the Secretary of VA submitted a Joint Motion for Partial Remand (JPMR) requesting that the portion of the November 2008 Board decision denying service connection for tinnitus be vacated and remanded for readjudication. Later that month, the Court granted the motion and remanded the case to the Board for further review. In September 2010, the Board remanded the issue of entitlement to service connection for tinnitus for further evidentiary development pursuant to the JMPR. In a June 2012 decision, the Board again denied service connection for tinnitus, and the Veteran again appealed the decision to the Court. Again, the Veteran, through an attorney, and the Secretary of VA submitted a JPMR requesting that the portion of the November 2008 Board decision denying service connection for tinnitus be vacated and remanded for readjudication. In June 2012, the Court granted the motion and remanded the case to the Board for further review. In July 2012, the Veteran issued to the Veteran a copy of a previous, October 2006 statement of the case (SOC). The issuance of this SOC appears to have been in error. The issues addressed in the SOC include service connection for tinnitus, which is currently before the Board, and service connection issues previously adjudicated and no longer before the Board (for an acquired psychiatric disorder, a gastrointestinal condition to include irritable bowel syndrome, and gastroesophageal reflux disease). As issuance of this SOC appears to have been issued in error, such SOC has no bearing on this appeal. Also, in June 2012, the Board remanded the Veteran's claims of entitlement to an effective date earlier than November 6, 2004, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and entitlement to an effective date earlier than November 6, 2004, for the grant of entitlement to Dependents' Education Assistance (DEA) benefits for additional development. Such claims remain in remand status, and it appears that the agency of original jurisdiction has begun taking action on such claims pursuant to the Board's remand directives. Such claims should continue to be developed and readjudicated in accordance with the Board's June 2012 remand. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's current tinnitus is etiologically related to either in-service noise exposure or his service-connected fibromyalgia and/or mood disorder CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that acoustic trauma caused by exposure to the loud noise of firing guns during service resulted in his development of tinnitus. Alternatively, the Veteran asserts that his tinnitus was caused or aggravated by his service-connected fibromyalgia and/or mood disorder. The Board finds that, given the circumstances, additional use of VA resources to develop the instant claim is not warranted, and, resolving doubt in the Veteran's favor, his service connection claim should be granted. Service treatment records (STRs) are completely devoid of any complaint, finding, or treatment of tinnitus, the Veteran denied hearing problems at the time of his separation examination, he did not mention having tinnitus allegedly related to service until he filed his claim with VA for compensation benefits, and his statements regarding the onset and continuity of his tinnitus have been somewhat inconsistent. Furthermore, the medical opinion evidence of record has been unclear, equivocal, and conflicting as to whether the Veteran's tinnitus is related to either his service or to his service-connected fibromyalgia and/or mood disorder. An April 2005 VA audiological examiner considered the Veteran's reported history and concluded that it was less likely than not that tinnitus was caused by or a result of military noise exposure, but also noted that the Veteran suffered from disorders such as fibromyalgia and depression and was under stress, all of which could be related to tinnitus. Another audiological examiner in November 2011 found that it was at least as likely as not that the Veteran's tinnitus was caused or the result of military noise exposure, on the basis that he was exposed to weapons fire in-service, but later changed her opinion in an addendum and found his tinnitus was less likely than not caused by or a result of military noise exposure, on the basis that there were no complaints of tinnitus in the STRs; she did not explain the basis for her change in opinions. Moreover, the November 2011 VA audiological examiner considered whether the Veteran's tinnitus was caused or aggravated by his fibromyalgia or mood disorder and noted that tinnitus can be caused by hearing loss, noise exposure, acoustic trauma, or absolutely nothing at all. She also wrote that fatigue and stress can at times aggravate tinnitus. However, she ultimately found that there was not sufficient evidence to link tinnitus to fibromyalgia or mood disorders given the mysterious nature of tinnitus and the limitations of knowledge in the medical community at large. She stated that she was unable to resolve the question without resort to mere speculation. A January 2012 fibromyalgia examiner, in a February 2012 addendum, concluded that the Veteran's tinnitus was in no way related to fibromyalgia, explaining that the conditions were unrelated and there was no evidence to suggest a correlation for fibromyalgia causing tinnitus, but did not provide an opinion regarding aggravation. Given the above, given the subjective nature of the Veteran's tinnitus and the litigation in the mater, and resolving doubt in his favor, the Board finds that the Veteran's current tinnitus is etiologically related to either in-service noise exposure or his service-connected fibromyalgia and/or mood disorder. In making this determination, the Board has considered the fact that the issue on appeal has been remanded by the Court twice and the Board once, and finds that further use of VA resources to develop this claim is not warranted and could potentially further delay adjudication of the Veteran's remaining claims currently in remand status. Accordingly, resolving doubt in the Veteran's favor, the Board finds that the claim for service connection for tinnitus should be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs