Citation Nr: 1330983 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-07 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1972 to November 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In June 2011, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of his claim. A complete transcript is of record. FINDING OF FACT The Veteran's tinnitus is as likely as not related to service-connected bilateral hearing loss. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, even though the Veteran has claimed solely that his tinnitus began in service, because the Board is granting service connection for hearing loss in this decision, the question arises as to whether service connection for tinnitus may be granted on a secondary basis. 38 C.F.R. § 3.310(a). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 1 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. at 448. In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board notes that Veteran was afforded a VA audiological examination in September 2009. It was noted that the Veteran was exposed to acoustic trauma working in the boiler room while in the Navy. However, the examiner stated that the Veteran denied having tinnitus, and thus tinnitus was less likely as not due to boiler room noise exposure during service. The Board points out that tinnitus has been diagnosed during the course of this appeal in private records dated in 2008 and 2009. The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As well, tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). It is noted that the Veteran has testified before the undersigned that his tinnitus is intermittent and not constant but that he does experience the disorder. He stated that he was not experiencing tinnitus at the time of the examination, and that was the extent of his denial of having tinnitus. The Board finds that thus the Veteran satisfies the existence of the present disability standard for his tinnitus claim. The Board notes that during the course of this appeal service connection was granted for bilateral hearing loss. Thus as noted during the Veteran's hearing before the undersigned, the question arises as to whether service connection for tinnitus may be considered on a secondary basis, i.e., as proximately due to or the result of the service-connected hearing loss disability. 38 C.F.R. § 3.310(a). The Board notes that 'an associated hearing loss is usually present' with tinnitus. THE MERCK MANUAL, SEC. 7, CH. 82, APPROACH TO THE PATIENT WITH EAR PROBLEMS. In addition, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Finally, the Board notes that 'high frequency tinnitus usually accompanies [noise-induced] hearing loss.' THE MERCK MANUAL, SEC. 7, CH. 85, INNER EAR. While having to rely on its own reading of medical treatise evidence regarding a relationship between tinnitus and sensorineural hearing loss is not evidence that the Board would find as useful as the report of a qualified examiner who could discuss such a relationship in this particular case, the Board finds, as the RO did with the claim for service connection for the hearing loss disability, that the evidence provides a sufficient basis in this case on which to grant service connection for hearing loss. Given the RO's determination in this claim that service connection is warranted for the Veteran's bilateral hearing loss, his diagnosis of tinnitus, the Veteran's credible testimony regarding his symptoms and the provisions from The Merck Manual cited above, the Board concludes that evidence for and against the claim for service connection for tinnitus is, at the very least, in approximate balance. Therefore, resolving all reasonable doubt in his favor, it is as likely that tinnitus is the result of the now service-connected hearing loss as it is to some other cause or factor. Accordingly, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs