Citation Nr: 1331887 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-06 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1963 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In June 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In August 2013, the Board requested a Veterans Health Administration (VHA) opinion as to the etiology of the appellant's tinnitus. A VHA opinion was obtained in September 2013 and associated with the claims file. FINDING OF FACT The competent medical evidence and competent and credible lay evidence of record demonstrates that the appellant's bilateral tinnitus is caused or aggravated by his service-connected bilateral hearing loss. CONCLUSION OF LAW Tinnitus was caused or aggravated by the appellant's service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notice and Assistance The claim has been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Mlechick v. Mansfield, 503 F.3d 1340 (2007). Legal Criteria and Analysis The appellant asserts that he is entitled to service connection for tinnitus due to exposure to loud noise in service. For the reasons discussed below, the Board finds that service connection for tinnitus is warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The appellant asserts that he has bilateral tinnitus. See January 2010 VA examination. As a lay person, the appellant is competent to report symptoms capable of lay observation, such as ringing in his ears. Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met. The appellant asserts that he was exposed to loud noise in service while working on a diesel submarine. At the Board hearing, the appellant stated that he was also exposed to shipyard noise. See June 2011 Board Hearing Transcript (Tr.) at p. 3. His Form DD 214 indicates he was a yeoman in the Navy. The appellant's service treatment records indicate he served on a submarine. Based on this history, the Board finds the appellant was likely exposed to loud noise in-service. The appellant asserts that he has had tinnitus since service. See Tr. at p. 3. As noted above, the appellant is competent to report symptoms capable of lay observation. The appellant's service treatment records are silent for tinnitus. In 1969, the appellant applied for service connection for hearing loss. An August 1969 VA examination report noted that there was "no tinnitus." The appellant was granted entitlement to service connection for hearing loss in a September 1969 rating decision. The appellant was afforded a VA audiological examination in August 2010. The report noted that the appellant had constant, bilateral tinnitus of unknown onset. The appellant reported that he had had tinnitus for "many years" and did not remember having it when he was in high school. The VA examiner noted that the most likely etiology of the tinnitus was acoustic trauma. The VA examiner stated that "based on unknown onset of the tinnitus and significant noise exposure post-military service, it is mere speculation that the [V]eteran's tinnitus is the result of military service." As the VA examiner did not provide a nexus opinion, the VA examination has limited probative value. The Board requested a VHA opinion in August 2013 as to the etiology of the appellant's tinnitus. In a September 2013 VHA opinion, a VA otologist opined that: Although in August 1969, there is documentation that the Veteran had no tinnitus at that time, the onset of tinnitus can occur at a later date. Hearing testing reported 30 years later is worse tha[n] the thresholds of hearing at the time of discharge from service, however it is clear that hearing loss was present at the time of discharge. The nature of tinnitus is that it is a chronic problem and can be related to noise induced hearing loss. The hearing loss that started during military service is at least as likely as not related to service due to the in-service acoustic trauma. It is also at least as likely as not that the Veteran's tinnitus is caused or aggravated by his service-connected bilateral hearing loss. As the September 2013 VHA opinion includes a thorough rationale for the opinion and is based on the evidence of record, the Board finds that it is highly probative. Service connection may be granted for disability which is proximately due to, the result of, or aggravated by, a service connected disease or injury. 38 C.F.R. § 3.310 (2013). The threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. See Wallin v. West, 11 Vet. App. 509. 512 (1998). Based on the evidence of record, the Board finds that service connection is warranted. The appellant has bilateral tinnitus. He is service-connected for bilateral hearing loss. The September 2013 VHA opinion indicates that the appellant's tinnitus is caused or aggravated by his service-connected bilateral hearing loss. The Board finds the September 2013 VHA opinion to be highly probative as the examiner included a thorough rationale and reviewed the evidence of record. There is no evidence of record against a finding that the appellant's tinnitus is related to his service-connected hearing loss. Giving the appellant the benefit of the doubt, the Board finds that the appellant is entitled to service connection for bilateral tinnitus, as secondary to service-connected bilateral hearing loss. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for bilateral tinnitus, as secondary to service-connected bilateral hearing loss, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs