Citation Nr: 1325494	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  06-29 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel 


INTRODUCTION

The Veteran had certified active service from August 1963 to August 1965.  He had additional duty with the Army Reserve. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO). 

In July 2010, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.

In October 2010 and September 2012, the Board remanded this matter for additional development actions.

Additionally, in September 2012 the Board remanded the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability.  In a February 2013 rating decision, the Appeals Management Center (AMC) granted this claim.  In view of the foregoing, this issue has been resolved and is no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997);

The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system.


FINDING OF FACT

The Veteran is competent to report having experienced tinnitus since service.



CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R.            §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  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.  See 38 C.F.R.  § 3.303(d).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury.  See Pond v. West, 12 Vet. App. 341, 346 (1999).  

Here, the Veteran contends that he has tinnitus as a result of active service; specifically, he claims that he began experiencing tinnitus as a result of in-service noise exposure, to include performing his duties as an armor crewman. 

The first element of service connection is medical evidence of a current disability. The evidence of record includes diagnoses of tinnitus.  See, e.g., the July 2012 VA examination report.  As such, this element is satisfied.

The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease.  The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was an armor crewman.  Based on the forgoing, exposure to excessive noise in service is conceded as consistent with the circumstances of his service.  The Veteran also reports that he experienced tinnitus in service.  38 U.S.C.A. § 1154(a) (West 2002). 

The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury. 

Although the Veteran's available service treatment records are negative for any complaints or diagnoses of tinnitus, the Veteran has indicated that he suffered from a ringing in his ears since his period of active duty service.  While his June 1965 Report of Medical Examination at separation indicated that his ears were within normal limits, the Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears).  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  To this extent, the Board finds that the Veteran is competent to report that he has experienced tinnitus since service.  Moreover, there is no reason to doubt his credibility as he reported during the July 2012 examination that tinnitus is recurrent.

Additionally, pertinent to tinnitus, the Board notes that "an associated hearing loss is usually present" with tinnitus.  See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id. Moreover, "high frequency tinnitus usually accompanies [noise-induced] hearing loss."  The MERCK Manual, Section 7, Ch. 85, Inner Ear.  As noted above, the Veteran is already service connected for bilateral hearing loss due to in-service noise exposure.

The Board recognizes that in a July 2012 opinion, a VA examiner reported, after reviewing the Veteran's service treatment records and conducting an audiological examination of the Veteran, that it is less likely than not that the Veteran's tinnitus is related to noise exposure in service.  However, the Veteran was not yet service-connected for hearing loss at that time.  Moreover, in a November 2012 opinion, another VA examiner declined to diagnose the Veteran with tinnitus related to the Veteran's military service.  Crucially, however, neither opinion from the VA examiners reflects that the Veteran's lay statements were considered in providing the unfavorable opinions.  As discussed above, the Board finds that the Veteran is competent to offer lay testimony as to the in-service onset for his tinnitus.  As such, the Board finds that both the July 2012 and November 2012 VA examination reports are of no probative value in evaluating the Veteran's claim.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred in service.  38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for tinnitus is granted.


____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs