Citation Nr: 1326438 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-19 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1976 to August 1979 and from June 1980 to May 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT It is reasonably shown that the Veteran has tinnitus that became manifest in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim for service connection for tinnitus. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.". The Court has also held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran contends that service connection for tinnitus is warranted because it resulted from acoustic trauma he experienced while serving as "a combat engineer doing demo work" and "a field artillery man drill instructor working the ranges." He asserts that that he has "experienced tinnitus ever since [his] exposure to acoustic trauma in service." See April 2009 VA Form 21-4138, Statement in Support of Claim. The Veteran's DD 214 shows that his military occupational specialty (MOS) in the U.S. Army was cannon crewmember. His service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnosis of tinnitus. On August 2009 VA audiology examination, the Veteran denied tinnitus. [Notably, on August 2009 VA ear disease examination, the examiner reviewed the Veteran's claims file, including his STRs and post-service treatment records, and noted that the Veteran experienced acoustic trauma in service, was employed as a construction manager and primarily did cost analysis in an office after separation, and "wears sound protection" when hunting. The examiner also noted that the Veteran had intermittent Eustachian tube dysfunction and underwent placement of ventilation tubes twice (initially in service in 1977), that audiometry in service (in 1988) showed elevated puretone thresholds, and that the Veteran's most recent audiogram showed significant neurosensory hearing loss in both ears. The examiner opined that "it is at least as likely as not that [the Veteran's] bilateral sensory hearing loss and conductive components to his hearing is secondary to his history of military noise exposure and also secondary to his history of middle ear dysfunction and his scarring related to his placement of ear ventilation tubes." A September 2009 rating decision granted service connection for bilateral hearing loss.] It is not in dispute that the Veteran has tinnitus as tinnitus is a disability capable of lay observation [by the person experiencing it]. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). His lay statements, standing alone, constitute sufficient evidence to establish presence of a current tinnitus disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because he served as a cannon crewmember in the U.S. Army, it is also not in dispute that he was exposed to substantial noise trauma in service. What he must still show to substantiate his claim is that the tinnitus is related to his service/noise trauma therein. One method of establishing service connection is by showing that the disability for which service connection is sought became manifest during service, and has persisted since. The Veteran alleges that such is the case with his tinnitus, as he first noted it in service, and it has persisted postservice. Because the service records do not show tinnitus, the determinative rests on the Veteran's credibility. The fact that tinnitus was not noted in the service treatment records does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. Against the Veteran's claim is the August 2009 VA audiology examination report, wherein he denied tinnitus. In support of the Veteran's claim is his prior (April 2009) statement that he has had tinnitus since service. Upon close consideration of the entire record the Board finds that the Veteran's April 2009 account of onset of tinnitus in service and continuity since is reasonably shown to be credible. He has fairly consistently maintained (with one notable exception, which he has explained) that his tinnitus began in service, and has persisted. The Board notes that audiometry in service showed elevated puretone thresholds and that tinnitus is known to be associated with SNHL (which supports his reports). Resolving remaining reasonable doubt in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus became manifest in service and has persisted since. The requirements for establishing service connection for tinnitus are met. Service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs