Citation Nr: 1330947 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-16 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran had active service from January 1969 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2012 a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. This appeal initially included the additional issues of service connection for hearing loss and for posttraumatic stress disorder (PTSD). A March 2010 rating decision granted service connection for hearing loss. Following the issuance of the March 2010 statement of the case (which included the issue of entitlement to service connection for PTSD) the Veteran's April 2010 VA Form 9 (Substantive Appeal) limited his appeal to the issue of service connection for tinnitus. Accordingly, the issues of service connection for hearing loss and PTSD are not now before the Board. FINDING OF FACT It is reasonably shown that the Veteran's tinnitus had its onset in service, and is due to pathology for which service-connection is established (underlying his service-connected hearing loss). CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 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. However, inasmuch as this decision grants service connection for tinnitus, there is no reason to belabor the impact of the VCAA on the matter, since any notice or duty to assist omission is harmless. At the Travel Board hearing the undersigned advised the Veteran of the basis for the denial of his claim, and that the record appeared to contain the evidence needed to substantiate the claim (i.e., that further development of the record is not necessary). Legal Criteria, Factual Background, and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed. 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. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (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). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). In the case of a veteran who engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent evidence. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 381 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary when the determinative question is one requiring medical knowledge. Id. The Board finds that service connection is warranted for tinnitus in this case because (1) competent medical evidence establishes that the Veteran's tinnitus is a symptom of his service-connected hearing loss disability (is due to pathology underlying the service-connected hearing loss, and alternatively/additionally (2) the Veteran has provided competent testimony of onset of intermittent tinnitus in service followed by a continuity of such symptom beginning shortly following service. The Veteran's service treatment records, including his August 1970 separation examination report, are silent for complaints, findings, treatment or diagnosis of tinnitus. His DD Form-214 reflects he was awarded a Vietnam Gallantry Cross with Palm (connoting he served in combat) and is entitled to consideration of his claim under the relaxes evidentiary standards of 38 U.S.C.A. § 1154(b). At his September 2012 Board hearing, the Veteran testified that following two significant incidents of acoustic-trauma during his service in Vietnam he experienced some buzzing or ringing in his ears. He testified that he began to notice recurrences of tinnitus during service, and that he noticed the tinnitus become constant shortly after he returned home from Vietnam. He testified that the constant ringing symptoms intensified over the years. Significantly, tinnitus is a disability eminently capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran's testimony indicates that he experienced intermittent tinnitus following substantial acoustic trauma during service and that he experienced more persistent tinnitus proximately following service with intensity increasing to the present. The Board finds no reason to question his account, particularly in light of 38 U.S.C.A. § 1154(b). Onset of a disability in service and continuity of symptoms since is one way of establishing service connection. See 38 C.F.R. § 3.303(b). Furthermore, the evidence of record also supports a grant of service connection for tinnitus on a secondary service connection theory of entitlement. On February 2010 VA examination the audiologist opined: "Given the veteran has hearing loss, it is as likely as not the veteran's tinnitus is a symptom associated with hearing loss." The Board interprets this opinion as indicating that the Veteran's tinnitus is due to the pathology that underlies his service connected hearing loss. This medical opinion was provided by a competent VA audiologist informed by review of the claims-file and evaluation of the Veteran. It is probative evidence that supports the Veteran's claim (and can be reconciled with that same provider's opinion that is essentially to the effect that the tinnitus is otherwise be directly attributable to his exposure to noise in service). It expressly relies exclusively on the examiner's understanding that "the veteran reported the tinnitus had a gradual onset over many years." The February 2010 VA examiner appears to have considered the less favorable of two possible interpretations of the Veteran's account of his symptom history (that his tinnitus had onset gradually over many years rather than having onset during or proximately to service with increasing intensity since), and still have found a nexus between the Veteran's hearing loss and his service (i.e., on the secondary service connection theory of entitlement). The record contains no medical opinion to the contrary. The Board finds no reason to question the conclusion of the VA audiologist as to the secondary service connection theory of entitlement. Accordingly, the Board finds that the evidence reasonably supports the Veteran's claim under both direct and secondary service connection theories of entitlement and that service connection for tinnitus is warranted. ORDER The appeal seeking service connection for tinnitus is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs