Citation Nr: 1332033	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-04 051	)	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:	The American Legion


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel



INTRODUCTION

The appellant served on active duty from August 1950 to August 1953.

This appeal to the Board of Veterans' Appeals, hereinafter the Board, arises from a January 2008 rating decision in which the RO, in pertinent part, denied the appellant's claim of service connection for tinnitus.

The record reflects that the appellant's claim has been remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, on four different occasions.  The claim was remanded in August 2010, January 2012, November 2012, and, most recently, April 2013.  The claim has since been returned to the Board for review.  

Upon review of the record, the Board finds there has been substantial compliance with its prior remand instructions.  The Board notes that the United States Court of Appeals for Veterans Claims, hereinafter the Court, has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  

In this case, the Board had instructed that a VA audiologic examination be conducted.  This was accomplished in June 2013.  The examiner was responsive to the Board's inquiry, and considered the Veteran's lay statements, as requested.

Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's remands when the results of those remands are taken in toto.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the veteran the right to compliance with the remand orders). 

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

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.  While on active duty, the appellant was exposed to acoustic trauma.  

2.  The appellant has current tinnitus that was caused by or the result of acoustic trauma in service.


CONCLUSION OF LAW

Resolving reasonable doubt in the appellant's favor, the criteria for an award of service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the appellant).

Also, 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 appellant.  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).

Veterans Claims Assistance Act of 2000

The appellant has come before the VA asking that service connection be granted for tinnitus.  As provided by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 & Supp. 2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). 

The Board finds that the AOJ has substantially satisfied the duties to notify and assist, as required by the VCAA.  Regarding his claim for tinnitus, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with appellate review of the issue, given the favorable nature of the Board's decision with regard to this issue. 

Laws and Regulations for Service Connection

Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110, 1131 (West 2002).  In order to establish service connection for the claimed disorder, there must be evidence of:  (1) a current disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed inservice disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Where a chronic disease listed in 38 U.S.C.A. § 1101 (West 2002), is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2013). 

When a condition noted during service is not shown to be chronic, or 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) (2013).  Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link current disability to service.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307.  These provisions only apply to listed chronic diseases.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Additionally, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 

Facts and Discussion

The appellant contends that as a result of his exposure to artillery fire, along with infantry training, he was repeatedly exposed to loud noises and trauma.  

.  However, the appellant has asserted that he experienced noise exposure.  In this regard, service connection is in effect for hearing loss and there is no dispute with respect to his claims of in-service acoustic trauma.  

In this case, the appellant's service treatment records are not available for review.  
As they are presumed to have been destroyed.  Under such circumstances, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Ussery v. Brown, 8 Vet. App. 64 (1995); Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes, however, that the O'Hare precedent does not raise a presumption that the missing service treatment records would, if they still existed, necessarily support the appellant's claim.  

Turning to the post-service record, medical reports dated in February 2012, November 2012, and June 2013 are of particular importance.  In the report from the medical examination in February 2012, the appellant expressed his belief that his tinnitus began while he was on active duty, when he originally noticed a decrease in his hearing ability.  He indicated that the tinnitus occurred and was noticeable for many hours during the day, though not while he was engaged in other activities.  Upon completion of the examination, the examiner wrote that there was no evidence in the record that would show chronicity or continuity of care for tinnitus.  The examiner further hypothesized that the appellant's current complaints of tinnitus could be related to post-service automobile accidents, head injuries, TIAs, or family history.  As such, it was concluded that the appellant's claimed tinnitus was less likely as not caused by or the result of his military service.  

A review of the evidence was provided by a VA examiner in November 2012.  The reviewer surmised that there was no evidence in the appellant's claims file that would support the conclusion that the appellant's claimed tinnitus was attributable to active military service.   

The third and final report is dated June 2013.  In that report, the examiner wrote that the appellant reported a history of exposure to gunfire, explosions, and artillery noise without the benefit of hearing protection while on active duty.  The examiner further reported that the appellant had some, if minimal, noise exposure after his discharge from the US Army.  Upon completion of the examination, the examiner indicated that the appellant's tinnitus was at least as likely caused by service.  The Board does note that the examiner did also partially contradict himself when he said that the appellant denied having tinnitus even though the examiner previously concluded, without hesitation, that the appellant's claimed tinnitus was a "result of military noise exposure."

There are no other medical opinions of record concerning the etiology of the claimed tinnitus disorder.  

In this case, on two different occasions, two separate VA health care providers have diagnosed the appellant as having bilateral tinnitus.  Thus, the Shedden element (1) is therefore satisfied.  See Shedden, supra.  Moreover, in-service injury, in the form of acoustic trauma, is here conceded.  The final question for consideration is whether the current tinnitus is due to the in-service acoustic trauma.  Again, the record contains a June 2013 VA opinion attributing the appellant's tinnitus to military noise exposure.   While contrary opinions exist, the overall record is deemed to be at least in equipoise, enabling an award of service connection.   See 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013); Shedden, supra. 




ORDER

Entitlement to service connection for tinnitus is granted.  



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs