Citation Nr: 1329095 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 13-15 630 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1968 to April 1989. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2012 rating decision. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to loud noise and chronic ear disease in service. 2. The Veteran has a current disability of tinnitus. 3. Tinnitus originated during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the full benefit sought on appeal as it relates to the claim of service connection for tinnitus, this claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The condition at issue, tinnitus, is not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran filed the claim in this case in April 2011 seeking service connection for tinnitus. (Service connection has been established for bilateral hearing loss and perforated tympanic membrane of the right ear). The Veteran, including through his representative, contends that he was exposed to loud noises from the firing of heavy weapons on a daily basis while in service, that tinnitus began in service, that he was not exposed to any loud noises after service due to the use of proper hearing protection, and that he still experiences the same symptoms of tinnitus to this day. The Veteran's representative contends that tinnitus is the type of disability capable of lay observation, and that reasonable doubt should be resolved in the Veteran's favor. After a review of all the evidence, lay and medical, the Board finds that the evidence is in equipoise on the question of whether the Veteran was exposed to loud noises during his period of active service. The Veteran has written that he was exposed to loud noises in service. The Veteran's military occupational specialty (MOS) was Telecommunication Center Operator, which has a moderate noise exposure. The Veteran is competent to report noise exposure during service, although he did not report loud noise exposure during service or complain of tinnitus during service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was exposed to loud noises during service. On the question of in-service injury or disease, the evidence also shows that the Veteran experienced chronic ear disease in service. The service treatment records (STRs) reflect middle ear infections. The Board finds that the evidence is in equipoise on the question of whether the Veteran currently has a disability of bilateral tinnitus. The Veteran has reported that he has a current disability of bilateral tinnitus. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). On the question of whether the Veteran currently has tinnitus, the VA examination report dated in November 2011 reflects that the examiner wrote that the Veteran did not claim tinnitus and that there was no current complaint of tinnitus; however, the Board finds these notations to be in error, as they are inconsistent with the claim for service connection for tinnitus that the Veteran had previously filed and are inconsistent with the Veteran's reports of tinnitus on other occasions. While an examiner's history recorded in a VA examination report is presumed to be accurate because of administrative regularity in recording such information while taking a history and conducting an examination, in this case, the evidence of record, specifically that the Veteran was seen at this VA examination based upon his April 2011 claim for service connection for tinnitus, provides clear evidence to overcome the presumption of regularity regarding the history and complaints reported at the VA examination. Resolving reasonable doubt in the Veteran's favor on the question of current disability, the Board finds that the Veteran has a current disability of tinnitus. Finally, the Board finds that the evidence is also in equipoise on the question of whether the Veteran's bilateral tinnitus is related to his period of active service. There is both unfavorable and favorable evidence regarding the question of whether the Veteran has tinnitus causally related to the period of active service. The unfavorable evidence includes that the Veteran's STRs reflect no complaint, finding, or diagnosis of tinnitus. There is also no post-service evidence of complaints, findings, or diagnosis of tinnitus until the Veteran filed the current claim for service connection for tinnitus. After service, the Veteran filed other claims for service connection for hearing loss and for "ear problems" (perforated tympanic membrane of the right ear), but did not mention or claim service connection for tinnitus at that time. The favorable evidence includes that the STRs reflect ear related problems during service, that the Veteran has reported during the current claim that he experience noise exposure during service, and that has experienced tinnitus since service. The Veteran reported in his July 2012 NOD and in the May 2013 VA Form 9 that he has suffered from symptoms of tinnitus while in service and that his symptoms have continued since that time. The favorable evidence also includes partially favorable VA examiner's opinions. A VA examination in November 2011 discussed the effects of the middle ear infections. In a May 2012 addendum to the examination report, the same VA examiner opined that the type of middle ear infections from which the Veteran had suffered during service lends itself to associated tinnitus. Such evidence supports the Veteran's claim by tending to relate the current tinnitus to the in-service ear infections. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran also claimed his service-connected hearing loss disability contributed to his tinnitus disability; however, because the Board decision is a full grant of benefits, that is, a grant of tinnitus claim on a direct theory of service connection, other theories of entitlement to the granted benefit are rendered moot. The Board does not reach the theory of secondary service connection pursuant to 38 C.F.R. § 3.310, and such theory does not need to be discussed in this decision as there remains no question of law or fact to be decided. 38 U.S.C.A. § 7104 (West 2002) (Board is to decide questions of law and fact). ORDER Service connection for tinnitus is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs