Citation Nr: 1320875 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-07 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to February 1955. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an August 2009 rating decision of the VA Regional Office (RO) in Philadelphia, Pennsylvania. The case was remanded by Board decision in March 2013. By rating decision in May 2013, service connection was granted for bilateral hearing loss. This is the full grant of that benefit sought on appeal and it is no longer for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is competent lay and clinical evidence of record that tinnitus is reasonably related service or a service-connected disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim. The Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see also 38 U.S.C.A. § 5103(a)(2). As the Board is granting service connection for tinnitus, further assistance is unnecessary to aid the Veteran in substantiating the claim, and further discussion of the VCAA is therefore unnecessary. Pertinent Law and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012.). 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. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Factual Background and Legal Analysis The Veteran contends that he has tinnitus that was caused by noise exposure during his active duty service. He has submitted statements to the effect that he worked on an experimental jet aircraft during service that was extremely loud and that he was not issued hearing protection at that time. He denies any significant noise exposure after separation from service. The Veteran's Navy personnel records reflect that he was trained in electrical instruments. His DD Form 214 shows that he completed the course requirements to become an Aviation Electrician's Mate Second Class. The Veteran's service treatment records are silent for any complaints or treatment of tinnitus. The ears were evaluated as normal on service discharge examination in February 1955. Post service, private clinical records dated in 2008 indicate that he was treated for bilateral hearing loss and eustachian tube dysfunction and reflect that he also complained of tinnitus. The Veteran was afforded a VA audiological examination in August 2009. He stated that he worked for eight months without hearing protection as an electrician on very loud jet engines. He related that after service, he was employed for 34 years in a factory as a mold maker where he did not often wear hearing protection. He denied any recreational noise exposure. He reported having tinnitus for over 20 years and indicated that it manifested as an intermittent buzz or whistle. Audiometric testing was performed that disclosed moderate to moderately severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. The examiner did not provide a diagnosis or an opinion regarding tinnitus. Pursuant to Board remand, the appellant underwent a VA audiology examination in April 2013. The examiner noted that claims file was reviewed. Pertinent history was recited and audiometric testing was performed. Following the evaluation, the examiner stated that the Veteran had clinical hearing loss and that tinnitus was at least as likely as not a symptom associated with hearing loss "as tinnitus was known to be a symptom associated with hearing loss." As noted, following this examination, service connection for bilateral hearing loss was granted. The Board finds that the Veteran's military duties likely presume significant noise exposure during active duty. Additionally, the Veteran is competent to assert the occurrence of in-service injury. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the evidence shows current diagnoses of bilateral hearing loss and tinnitus. While there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's statements as competent and credible as to his having been exposed to excessive noise in the military with resulting ringing in the ears. Additionally, in April 2013, a VA examiner determined that tinnitus was at least as likely as not a symptom associated with hearing loss for which service connection is now in effect. After review of the record, the Board finds that evidence is in relative equipoise, and that a finding of tinnitus related to service or a service-connected disability may be conceded. Therefore, based on the lay and clinical evidence of record, the benefit of the doubt is thus resolved in favor of the Veteran in granting service connection for tinnitus. 38 U.S.C.A. § 5107. ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs