Citation Nr: 1321799 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-22 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to December 1946 and from April 1947 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. No hearing was requested. The Board remanded this claim for additional development in September 2012 and January 2013. There is a paperless claims file and a Virtual VA paperless claims file (a highly secured electronic storage system), and all pertinent records are in the paper claims file. The case is now ready for adjudication by the Board. Please note 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 The Veteran's tinnitus is associated with the service-connected hearing loss. CONCLUSION OF LAW The criteria to establish service connection for tinnitus on a secondary basis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he has tinnitus as a result of hazardous noise exposure during service, or as secondary to his service-connected bilateral hearing loss. As the Board's decision herein to grant service connection for tinnitus constitutes a full grant of the benefit sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. 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). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). Service connection requires competent evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under certain circumstances, lay statements may be sufficient for service connection by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran is competent to identify the claimed disability of tinnitus based on symptoms such as ringing in the ears, as this condition is subjective in nature and is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370 (2002). He has reported having ringing in the ears or tinnitus several times during this appeal. Therefore, a current disability is established. With regard to in-service injury or disease, the Veteran's DD-214 reflects a military occupational specialty of carpenter construction, and work control specialist or technician. Carpentry is recognized as having a high probability of hazardous noise exposure. Moreover, the Veteran has been service-connected for bilateral hearing loss effective since 1977 based, in part, on such exposure. Therefore, military noise exposure is conceded, and the second element for service connection is established. The remaining question is whether there is a nexus or link between the Veteran's in-service noise exposure and his current tinnitus to establish direct service connection, or between his tinnitus and his hearing loss for secondary service connection. The service treatment records are silent for any complaints or treatment for tinnitus. Available medical evidence reflects that, in 1977, when the Veteran was examined in connection with his service connection claim for hearing loss, he did not mention tinnitus or ringing in the ears. Further, he specifically denied ringing in the ears in a "General Medicine Report" in 1979, as shown by his age when he completed that form. A few years later, an October 1982 record reflects complaints of occasional tinnitus. A November 1982 record then notes that he had "no significant tinnitus," but there were hearing difficulties. The Veteran was noted to have a hearing deficit in March 1988, but there was no reference to tinnitus or ringing in the ears. In April 1991, at age 64, the Veteran reported having long-standing tinnitus. During a March 2009 VA examination in connection with the current claim, the Veteran reported that he had hearing loss and could not hear due to tinnitus. The examiner noted that the difficulty hearing was actually due to his "very significant" or "substantial" hearing loss, not due to his tinnitus. The Veteran reported noise exposure in service from weapons, aircraft, and carpentry. His employment after service included carpentry and working as a contractor, and he also did woodworking as a hobby. The Veteran did not report any specific incident of onset of tinnitus but, rather, stated that it seemed like he "grew up" with it and it had "always been there." He had constant tinnitus at the time of the examination. In a December 2009 statement, the Veteran reported that he began to have hearing problems and ringing in the ears during basic training in service. He stated that his hearing got worse and the ringing increased over time after working around heavy equipment in the carpentry shop and with other loud noises during service. During a March 2010 VA examination, the Veteran reported that his tinnitus began "a long time ago." He again reported difficulty hearing due to tinnitus, and this examiner also noted that this would be due to his hearing loss, not tinnitus. The March 2009 and March 2010 VA examiners both opined that the Veteran's tinnitus was less likely than not due to his military noise exposure, based in large part on the fact that he denied having ringing in the ears in a report in the 1970s. In an October 2012 addendum opinion, the March 2010 VA examiner opined that the Veteran's tinnitus likely began between 1976 and 1982, based on the fact that he denied ringing in the ears in the General Medicine Report and reported occasional tinnitus in the 1982 treatment record. The examiner again opined that the current tinnitus was not a result of noise exposure during service, as the evidence indicates that the condition did not begin until more than 10 years after service. As none of the VA examiners or other medical evidence of record addressed the question of whether the Veteran's tinnitus was related to his service-connected bilateral hearing loss, the case was remanded for this purpose. However, in an October 2012 addendum report, the March 2010 VA examiner did not answer this question. Instead, she merely stated that her prior opinion had not changed. As such, there remains no medical opinion as to whether the Veteran's tinnitus is (or is not) at least as likely as not a symptom of or related to his bilateral hearing loss. The Veteran has submitted an internet article from the Mayo Clinic that states that tinnitus is a symptom of an underlying condition, such as age-related hearing loss, ear injury, or a circulatory system disorder. The article also states that tinnitus can worsen with age, and sometimes the ringing or other sound in the ears can be so loud that it interferes with your "ability to hear actual sound." The article notes that common causes of tinnitus include age-related hearing loss (such as over the age of 60), exposure to loud noises (which can cause permanent damage if there is long-term exposure), and other conditions or certain medications. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts. Mattern v. West, 12 Vet. App. 222, 228 (1999). Although there is no medical opinion as to the relationship between the Veteran's tinnitus and hearing loss, the Board notes that tinnitus is a condition that may be diagnosed by a lay witness, and there is evidence concerning the degree of the Veteran's hearing loss and its subjective worsening over time. Additionally, VA's manual for adjudicating claims, known as the M21-1MR, provides that if hearing loss is service-connected, and tinnitus is a symptom of hearing loss, VA will concede that they result from the same etiology. See M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Paragraph 12(f). As noted above, the Veteran's lay testimony is sufficient to establish a diagnosis of tinnitus because symptoms such as ringing in the ears are observable by his own senses. See Charles, 16 Vet. App. 370. He is also competent to report experiencing such symptoms during service and continuously after in-service noise exposure, as well as having worsening symptoms as he aged. See Jandreau, 492 F.3d 1372. The Board acknowledges that there are some inconsistencies in the evidence as to when the Veteran first noticed ringing in the ears. Further, he had potentially hazardous noise exposure during service between 1945 and 1966, as well as in various employment after service including carpentry. The Veteran has also been treated for various circulatory disorders such as deep vein thrombosis and may have other risk factors for tinnitus, as indicated in treatment records dated in 2008. Some of the older treatment records identified by the Veteran were unavailable. There are several negative medical opinions with regard to direct service connection. Further, the Veteran's report of having ringing in the ears that began during service and continued after that time are inconsistent with his express denial of ringing in the ears in the 1970s General Medicine Report. As such, service connection is not warranted on a direct basis. See 38 C.F.R. § 3.303. Nevertheless, considering all evidence of record, the Board finds that the evidence is in relative equipoise as to whether his current tinnitus is related to or a symptom of the service-connected hearing loss. As discussed above, although there is conflicting evidence as to whether the Veteran had ringing in the ears during service, there is competent evidence of symptoms of tinnitus that worsened over time, evidence of worsening hearing loss over the same time period, and a medical treatise indicating a possible relationship between the two disorders. As such, the benefit-of-the-doubt doctrine applies, and all reasonable doubt will be resolved in the Veteran's favor. Therefore, the evidence establishes that his tinnitus is secondary to his service-connected hearing loss. See 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for tinnitus, as secondary to service-connected bilateral hearing loss, is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs