Citation Nr: 1321946 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 10-20 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to July 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board remanded this claim for further development and consideration in November 2011, February 2013, and April 2013. The case is now ready for adjudication by the Board. There is a paperless claims file and a Virtual VA paperless claims file, and all pertinent records are in the paper claims file. 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). FINDINGS OF FACT The Veteran's tinnitus is proximately due to his service-connected hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus on a secondary basis have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 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 from being on the front lines of combat for several months during service, or as secondary to his service-connected 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; 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, 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 tinnitus or a sensation of water running, wind blowing, or ringing in the ears several times during the appeal. See January 2011, November 2011, and June 2013 VA examination reports. Therefore, a current disability is established. The Veteran's service treatment records are unavailable for review. However, hazardous noise exposure during service has been conceded based on the Veteran's combat service, as shown by his receipt of a Purple Heart and Combat Action Badge. Moreover, he was previously granted service connection for bilateral hearing loss 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 Veteran sought service connection for tinnitus in June 2009. At a January 2011 VA examination, he reported having bilateral hearing loss for the past 25 years and tinnitus for 10+ years. He described military noise exposure from bombs and grenades, but he denied any occupational or recreational noise exposure. The examiner stated a tinnitus match could not be performed due to functional behavior or apparent malingering by the Veteran. He was reinstructed several times by the examiner, but he did not or could not cooperate. No medical opinion was provided. At a March 2011 VA examination, the Veteran reported having bilateral hearing loss for approximately 50 years, but he denied current tinnitus. He reported military and occupational noise exposure without use of hearing protection. At a November 2011 VA examination, the Veteran reported having tinnitus for many years that was not bothersome. The examiner stated that he could not provide an opinion regarding the etiology of the Veteran's tinnitus without resorting to mere speculation because test results were invalid due to inconsistent responses. The Veteran was again examined by a VA audiologist in June 2013. At that time, he reported constant tinnitus in both ears that started after military service. He stated that the tinnitus started 20 to 30 years ago, and it could sound like wind blowing, water running, or a ringing sound in the ears. He also reported military noise exposure as well as post military occupational noise exposure while working in a garage. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure, reasoning that he reported that his tinnitus started after service and he had both military and post-service noise exposure. However, the examiner opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, reasoning that tinnitus known to be associated with hearing loss. Although several examiners were unable to provide an etiological opinion, the June 2013 VA examiner gave a negative medical opinion with regard to direct service connection for tinnitus. This is a well-reasoned opinion and appears consistent with the Veteran's statements as to the timing of his symptoms and noise exposure during and after service. In particular, the Veteran has consistently reported that his symptoms of tinnitus began many years after service. As such, service connection is not warranted on a direct basis. See 38 C.F.R. § 3.303. Nevertheless, the June 2013 VA examiner opined that the Veteran's tinnitus is at least as likely as not a symptom of or related to his service-connected hearing loss. Therefore, the benefit-of-the-doubt doctrine applies, and all reasonable doubt will be resolved in the Veteran's favor. Thus, 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 is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs