Citation Nr: 1331266 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-12 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to April 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2011, the Board remanded this matter as well as a claim seeking service connection for bilateral hearing loss for additional development. All development was substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2012, the Appeals Management Center (AMC) granted service connection for bilateral hearing loss; therefore, that claim is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection has been established for bilateral hearing loss. 2. The Veteran has tinnitus that is at least as likely as not related to his service-connected service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A.§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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, 7 Vet. App. 439, 448 (1995) (en banc). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran seeks service connection for tinnitus. He believes his condition is the result of noise exposure from artillery and ammunition explosions during service. Service personnel records confirm that the Veteran's occupational specialties included ammunition storage specialist and ammunition renovation specialist. Since the Veteran's occupational specialties involved activities that would have exposed the Veteran to acoustic trauma, his allegations to in-service noise exposure are credible. The Veteran had a VA examination in January 2008 at which time he reported a history of constant tinnitus in the left ear. The examination report states that the tinnitus was of a longstanding nature with the date and circumstances of onset unknown. The examiner provided a negative nexus opinion; however, that opinion is inadequate for rating purposes because the examiner did not consider the Veteran's lay statements regarding onset in the rationale. During his September 2011 VA examination, the Veteran reported that his tinnitus had onset five to six years prior. He denied having tinnitus during service. The examiner found that the tinnitus is as likely as not a symptom associated with the Veteran's service-connected hearing loss. Because the tinnitus had onset five or six years prior, and because of the Veteran's history of occupational noise exposure, the examiner found that it was less likely as not related to service. In this case, the claims file contains competent and credible evidence of a current disability, tinnitus. The competent and credible evidence also shows that tinnitus is as likely as not a symptom associated with the Veteran's service-connected bilateral hearing loss. Giving the Veteran the benefit of the doubt, the Board finds that tinnitus is secondary to the Veteran's service-connected bilateral hearing loss related to in-service acoustic trauma. Consequently, the Board finds that service connection for tinnitus is warranted. The appeal is granted. ORDER Service connection for tinnitus is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs