Citation Nr: 1330332 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 03-19 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an effective date earlier than February 19, 2009, for the 20 percent evaluation for the right thumb disability. REPRESENTATION Appellant represented by: Erin L. Webb, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to July 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the case was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran provided testimony at March 2004 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a July 2004 decision, the Board denied the Veteran's claim for service connection for tinnitus. In an August 2007 memorandum decision, the Court of Appeals for Veterans Claims (CAVC) partially vacated the Board's July 2004 decision. The Court's judgment was entered in September 2007, and the case was remanded to the Board for compliance with the memorandum decision instructions. This matter was previously before the Board in December 2008, June 2009, and February 2010, and December 2011. A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an effective date earlier than February 19, 2009, for the 20 percent evaluation for the right thumb disability is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran has recurrent tinnitus, and has provided competent and credible evidence that his tinnitus began during incidents of combat, including rocket blasts, in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist 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 and 3.326(a) (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant service connection for tinnitus. Law and Analysis Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). Service connection for certain chronic diseases, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2012). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). Lay statements 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, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he experienced symptoms of tinnitus in service due to his exposure to loud noise during combat and recurrent symptoms since that time. At an April 2003 VA examination, the Veteran reported a history of in-service noise exposure. The history section of the examination report indicated "[t]innitus: None." During the March 2004 hearing, the Veteran stated that he was exposed to rocket blasts and repetitive explosions in Vietnam. He stated that his symptoms of tinnitus were "not a constant thing." The Board denied service connection for tinnitus in a July 2004 decision. The Court's August 2007 memorandum decision found that the Board had erroneously concluded that the Veteran did not have tinnitus based on an April 2003 VA examination report when the diagnosis section of the examination report was silent regarding tinnitus. On VA examination in September 2009, the examiner acknowledged the Veteran's complaints of tinnitus during a "BVA hearing in 2005," but found no current complaints of tinnitus. The Board notes that the record shows the BVA hearing was March 2004. In a March 2010 VA examination report, the examiner recorded a history of the Veteran's tinnitus symptoms. The Veteran stated that he had not had any tinnitus symptoms in the past five years and that he first noticed tinnitus in 1990. He described the tinnitus as intermittent when exposed to traffic noise. The examiner indicated that there was no current diagnosis of tinnitus. The July 2012 VA examination report indicated that the Veteran reported recurrent tinnitus. The examiner acknowledged the Veteran's post-service reports of tinnitus, but found that the Veteran's recurrent tinnitus was less likely than not cause by or a result of military noise exposure. The examiner reasoned that there was "no report of tinnitus" in the April 2003 VA examination and noted that there was "no documentation of acoustic trauma occurring to the Veteran's hearing." The Board finds the July 2012 VA opinion of minimal probative value as it based on an incorrect characterization of the Veteran's noise exposure and does not address his reports describing a history of tinnitus symptomology. See generally, Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). The Court specifically instructed consideration of the Veteran's lay reports as to tinnitus symptomology in the August 2007 memorandum decision. The Board finds more probative the history recorded during the March 2004 Board hearing that the ringing in the Veteran's ears began during incidents of combat involving rocket mortars and repetitive explosives, and that it was not constant. The Board finds this testimony to be credible and consistent with the evidence of record. For example, the March 2010 and July 2012 VA examination reports indicated the Veteran had recurrent tinnitus. Similarly the hearing testimony was reasonably credible and consistent with other evidence of record that the tinnitus began during active service and that the Veteran had experienced recurrent tinnitus from active service forward. The Board conceded that the Veteran was exposed to acoustic trauma while serving in combat service in a February 2010 Decision. See 38 U.S.C.A. § 1154(b). Notwithstanding the fact that there is no official record of the incurrence or aggravation of tinnitus during service, the described incidents of experiencing tinnitus during combat are consistent with the circumstances, conditions, and hardships of the Veteran's combat service. VA shall resolve every reasonable doubt in favor of the veteran. Resolving reasonable doubt in favor of the Veteran, the evidence demonstrates that it is at least as likely as not that the Veteran has experienced currently diagnosed recurrent tinnitus from the time of active service forward. Accordingly, entitlement to service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b). ORDER Entitlement to service connection for tinnitus is granted. REMAND In a September 2009 rating decision, the RO assigned a 20 percent evaluation for the Veteran's service-connected right thumb disability, effective February 19, 2009. Thereafter, the Veteran submitted a notice of disagreement with the RO's decision regarding the assigned effective date. The Board observes that the date stamp on the notice of disagreement associated with the claims folder is August 2012; however, it is apparent that the RO received a timely communication concerning the effective date for the increase rating as the RO acknowledged receipt of the Veteran's request for an earlier effective date in a July 2010 letter. When there has been an adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). Rather, in its July 2010 letter, the RO interpreted the Veteran's statement as a "freestanding" claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this regard, the Board notes that the Veteran's earlier effective date claim is a timely disagreement relating to the rating assigned in the September 2009 rating decision. Moreover, even if the earlier effective date claim is a freestanding claim, the Veteran still has the opportunity to have that claim adjudicated and then the right to appeal. If he chooses to perfect his appeal, he will have the opportunity to present argument as to why his claim is not a stand-alone claim. As a notice of disagreement was submitted, the Veteran is entitled to a statement of the case. 38 C.F.R. § 19.26 (2012). As such, the Board is obligated to remand this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran and his representative addressing the issue of entitlement to an effective date earlier than February 19, 2009, for the assignment of a 20 percent evaluation for the right thumb disability. The RO should return the issue to the Board if and only if the Veteran files a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs