Citation Nr: 1329832	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-11 746	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	Aires Robinson, Agent


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran served on active duty from May 1981 to May 1984. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

The Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge in June 2013.  A copy of the transcript has been associated with the Veteran's Virtual VA electronic claims file.  

Moreover, a review of the Virtual VA claims file reveals additional VA treatment records dated through February 2013, which were considered by the RO in a March 2013 supplemental statement of the case.  

The Board notes that a December 2011 rating decision denied a rating in excess of 30 percent for the Veteran's service-connected left knee arthroplasty and entitlement to a total disability rating due to individual unemployability.  The Veteran entered a notice of disagreement in April 2012 and a statement of the case was issued in March 2013.  However, the Veteran failed to submit a timely substantive appeal in accordance with 38 C.F.R. § 20.202 (2012).  As such, these issues have not been perfected for appeal and, therefore, are not before the Board.


FINDING OF FACT

Resolving all doubt in favor of the Veteran, tinnitus is etiologically related to his in-service noise exposure.
  


CONCLUSION OF LAW

The criteria for a grant of service connection for tinnitus have been met.  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

As the Board's decision to grant service connection for tinnitus herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the 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. § 1131; 38 C.F.R.  § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without 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 disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran asserts that he began experiencing ringing in his ears in association with hearing loss while in service and such has continued to the present.  He has reported military noise exposure due to his military occupational specialty as a radio operator as well as exposure to close range artillery fire.  His DD 214 for the Marine Corps shows that his military occupational specialty was field radio operator.  

The Veteran filed a claim for service connection for tinnitus and hearing loss in September 2008.  He was afforded a VA audiological evaluation in February 2009.  The claims file was reviewed.  The examiner observed that the chief complaint was hearing loss and tinnitus.  The Veteran again reported in-service noise exposure without hearing protection as well as post-service exposure, including the following: a weapons qualifications exam when he was a correctional officer with hearing protection; driving a long haul semi-truck; riding a motorcycle; and using chainsaws and saws with hearing protection.  After examining the Veteran, the examiner opined that the Veteran's military noise exposure contributed to high frequency hearing loss based on threshold shift seen during military entrance and exit.  However, non-military noise exposure may also have exacerbated this hearing loss.  Nevertheless, with respect to tinnitus, the examiner opined that it was not related to military noise exposure because the Veteran did not report tinnitus at the examination.  

Based on this examination, service connection for right ear hearing loss was awarded.  

Post-service VA treatment records showed that the Veteran currently reported tinnitus that began in the 1980s with his hearing loss. 

The Veteran was afforded another VA examination in November 2011.  The claims file was not available for review at this examination.  The Veteran again described his in-service noise exposure and indicated that his tinnitus began in association with his hearing loss in 1983 or 1984.  The Veteran reported constant tinnitus.  He also essentially described the same post-service noise exposure.  It appears that an ear infection was noted on examination.  The examiner opined that the Veteran's tinnitus was less likely than not a symptom associated with hearing loss.  The examiner rationalized that it was not possible to determine if the conductive component was causing the tinnitus because of the conductive component in both ears, which was a medical condition.  The examiner further indicated that he could not provide an opinion on the etiology of the Veteran's tinnitus because of the conductive pathology.  The examiner rationalized that it could not be determined if tinnitus was related until the infection was cleared. 

In January 2012, the RO sent notice to the Veteran observing that the November 2011 examination findings were limited, and requested that the Veteran advise when his inner ear acute symptoms resolved so that he could be scheduled for another examination.  It does not appear that the Veteran was ever scheduled for another VA examination.  

At the Board hearing, the Veteran reiterated his in-service noise exposure as a radio operation as well as exposure artillery fire.  He testified that since that time, he had experienced both a decrease in his hearing as well as ringing in his ears that had continued to the present.  The Veteran indicated that his hearing loss and tinnitus started at the same time and are related to each other.   

Based on the totality of evidence of record, and by resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted.  Importantly, the record shows that the Veteran was exposed to significant noise during his military service.  Although the February 2009 VA examiner found that the Veteran's tinnitus was not related to service, the only rationale provided was that the Veteran did not report tinnitus at the examination.  However, VA treatment records as well as the Veteran's statements and hearing testimony clearly show that the Veteran has consistently reported ringing in his ears.  As such, this rationale appears inconsistent with the remainder of the evidence of record.  

Moreover, the most recent examination in November 2011 also failed to provide an etiological opinion given that the Veteran had an ear infection at that time.  However, the Veteran again reported tinnitus that began while in service.  Given these deficiencies, these examinations report are inadequate and, in turn, have minimal probative value.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).    

Importantly, the February 2009 VA examiner clearly determined that the Veteran's hearing loss was related to his in-service noise exposure.  The Board finds it significant that the Veteran has been awarded service connection for right ear hearing loss based on his in-service noise exposure.  Although hearing loss and tinnitus are separate disabilities, medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the associated hearing loss.  See, e.g., Harrison's Principles of Internal Medicine 178 (Anthony S. Fauci et al. eds., 14th ed. 1998).  

Moreover, in statements of record and at the Board hearing, the Veteran reported that his tinnitus began in association with his hearing problems in service, and has continued to the present.  Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Tinnitus is a disability that is subject to lay observation and, in turn, the Veteran is competent to report current symptoms of tinnitus that began in service.  Moreover, as the Veteran has been consistent in his assertions, there is no reason to doubt his credibility.

In sum, the evidence documents noise exposure in service, and the lay evidence shows a link between the Veteran's current tinnitus to his in-service noise exposure.  Accordingly, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107(b).  The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate.  See 38 U.S.C.A. § 5107; Gilbert, supra.
    

ORDER

Service connection for tinnitus is granted. 



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs