Citation Nr: 1333468	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  10-26 173	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife, J.M.


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to July 1960. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

A hearing before the undersigned Veterans Law Judge at the RO was held in February 2013.  A transcript of the hearing has been associated with the claims file.

The Veteran is currently service-connected for bilateral hearing loss at a 10 percent rating, effective October 10, 2007.


FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the evidence of record demonstrates that tinnitus is related to acoustic noise exposure during active service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

Here, in light of the favorable decisions below, the Board finds that any deficiency in the notice provided herein was not prejudicial to the Veteran and is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

Service connection may 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).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  See 38 C.F.R. § 3.303(b) (2012).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Tinnitus has been variously defined.  It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane").  See Butts v. Brown, 5 Vet. App. 532, 540 (1993).  It is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  See YT v Brown, 9 Vet. App. 195, 196 (1996).  It is a ringing, buzzing noise in the ears.  See Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin."  See 59 Fed. Reg. 17,297 (April 12, 1994).

The Veteran contends that his tinnitus stems from his duties as a jet mechanic during his military service.  He stated he maintained engines and tested them on the flight lines.  He stated he was exposed to loud engine noises for a minimum of three hours a dayand that he was given hearing protection but they were not effective.  The Veteran stated he first experienced tinnitus during service and it gradually increased in severity.  He stated he was not given audiological examinations during his time in service or at separation from service.  The Veteran acknowledged that he was afforded a VA examination in May of 2008 where he stated he did not have tinnitus but that he did not know this was the medical terminology for his symptom of ringing in his ears.  The Veteran also stated he did not have occupational or recreational noise exposure after separation. 

The Veteran further testified that he was trained to be a jet mechanic in Norman, Oklahoma, and Memphis, Tennessee.  Afterwards, he was assigned to Oceana Naval Air Base in Virginia Beach, Virginia.  The Veteran stated he worked in this capacity for two and a half years. 

In addition, the Veteran's wife, J.M., testified that she is able to recall the Veteran complaining about ringing in his ears a year prior to their marriage in 1965.

According to the Veteran's DD 214, the Veteran's military occupational specialty is not listed.  However, the Veteran's personnel records indicate he has a bachelor degree in Mechanical Engineering. 

The Board notes that it appears from the record the Veteran was afforded a VA examination in May 2008, however, this examination report is absent from the claims file.  Nevertheless, as stated above, given the outcome of this appeal, the absence of this report does not prejudice the Veteran.

The Veteran was afforded another VA examination in April 2009 where the VA examiner noted the Veteran denied tinnitus at the May 2008 VA examination.  Here, the Veteran reported bilateral tinnitus with onset in service concomitant with the onset of hearing loss.  The Veteran stated his tinnitus was constant and worse on the left side.  Upon examination, the VA examiner opined that the Veteran's tinnitus was less likely than not causally related to military noise exposure.  The rationale provided by the VA examiner was that "[a]lthough onset of tine tinnitus was reported as during service, the first complaint of tinnitus is extremely remote in time to military service and 'as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. ['] ("Noise and Military Service, Complications for Hearing loss" from the Institute of Medicine, page 119)." 

As previously noted, the Veteran is currently service-connected for bilateral hearing loss at a 30 percent disability rating, effective October 10, 2007.

While the Veteran acknowledges that there are no in-service medical treatment records in the claims file of complaints, treatment, or diagnoses of tinnitus, and the presence of a negative nexus opinion from the April 2009 VA examination, the Board cannot ignore the Veteran's credible lay statements that his tinnitus started during his military service.

The Board is cognizant that the Veteran has at times been inconsistent in his statements concerning whether he has tinnitus.  However, the Board finds these inconsistencies are minor and his assertions concerning in-service noise exposure, tinnitus, as well as continuity of such symptomatology since service, to be credible.  Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing).

More importantly, the Board finds the Veteran's statements and lay evidence credible that he was exposed to loud noise during his military service.  The Veteran is competent to report as to his own symptoms, and the Board finds the Veteran's history of experiencing tinnitus since service credible and consistent with the nature and circumstances of his service.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2008); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (the layperson may be competent to identify the condition where the condition is simple).  The Board recognizes the Veteran's testimony that he did not know the medical terminology for his symptom of ringing in his ears was tinnitus, that he first experienced tinnitus concomitant with his hearing loss during service, and that it continued since.  Furthermore, the Board also recognizes that the Veteran is currently service-connected for bilateral hearing loss.

Therefore, the Board finds the medical evidence is at least in relative equipoise on this issue.  When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the veteran.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Consequently, resolving such reasonable doubt in the Veteran's favor, the Board finds that the Veteran incurred tinnitus from service.  38 U.S.C.A. § 5107.  In granting this claim, the Board has resolved all doubt in the Veteran's favor.


ORDER

Entitlement to service connection for bilateral tinnitus is granted.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs