Citation Nr: 1323848 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-44 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the benefit sought on appeal. The Veteran appeared and gave testimony at a hearing before the undersigned at the RO in March 2011. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The preponderance of the evidence shows that the Veteran's tinnitus is etiologically related to his military service. CONCLUSION OF LAW Tinnitus was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for tinnitus has been granted, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection may be granted for disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection for the Veteran's claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary (31st ed. 2007). As a "subjective" ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran complained of tinnitus during his August 2009 VA examination. Accordingly, the Board finds that a current tinnitus disability exists, and the first Hickson element is therefore satisfied. Regarding the second Hickson element, in-service disease or injury, the Veteran asserts that he experienced loud noises in service. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including exposure to loud noise during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The second Hickson element, in-service injury or disease, is therefore met. With regard to the third Hickson element, medical nexus, the Board acknowledges that there is scant nexus evidence in the medical record. The Veteran underwent a VA examination in August 2009, but the examiner did not opine as to the relationship between the Veteran's tinnitus and his military service. In March 2010, Dr. J.M. indicated that it was as likely as not that the Veteran's tinnitus was the result of in-service noise exposure. Dr. J.M.'s opinion did not contain a rationale for this conclusion. Additionally, the Veteran has consistently argued, for example at his March 2011 hearing before the undersigned, that his tinnitus is related to his in-service noise exposure. He also asserts that it began right after military service. Notwithstanding the scant nature of this medical nexus evidence, the Board notes that the Veteran has previously established service connection for a bilateral hearing loss disability. Both the Veteran's diagnosis with a bilateral hearing loss disability as a result of in-service noise exposure and the subsequent grant of service connection for a bilateral hearing loss disability add to the credibility of the Veteran's contentions that his tinnitus is related to service because "an associated hearing loss is usually present" with tinnitus. See The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. The Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." See The Merck Manual, Section 7, Ch. 85, Inner Ear. In light of the evidence that the Veteran was exposed to acoustic trauma in service, the weight of the probative evidence of record indicates that the Veteran as likely as not incurred tinnitus during service. Service connection for tinnitus is warranted, and the Veteran's claim for service connection is granted, subject to the controlling laws and regulations that govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs