Citation Nr: 1337165 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-25 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to December 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2013, the Veteran testified in a Board hearing at the RO. A transcript of the hearing has been included in the claims file. Later in June 2013, the Board remanded this claim, in addition to a claim for service connection for bilateral hearing loss, for additional development and medical inquiry. In a September 2013 rating decision, the RO granted service connection for the Veteran's hearing loss. In view of the foregoing, that issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). 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. In reviewing the entire record, the Board notes that no evidence has been added to the record since the most-recent supplemental statement of the case (SSOC) issued in this matter in September 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is competent to report having experienced tinnitus since service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also 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). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). Here, the Veteran contends that he has tinnitus as a result of active service; specifically, he claims that he began experiencing tinnitus as a result of in-service noise exposure, to include exposure to weapons fire during army basic training. The first element of service connection is evidence of a current disability. The evidence of record indicating a current tinnitus disorder includes the Veteran's complaints of tinnitus noted in several VA treatment records dated between 2011 and 2013, includes a December 2011 VA audiology consult note indicating that the Veteran "endorsed" symptoms of tinnitus, and includes the Veteran's testimony before the Board, and written statements of record, in which he describes symptoms of tinnitus. As tinnitus is the type of disorder that is diagnosed by its unique and readily identifiable features, it is a disorder that is associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is not a determination "medical in nature" and is capable of lay observation). As such, this element is satisfied. With regard to the issue of a current disability, the Board notes that the Veteran underwent VA audiology examination in August 2013. In the report of record, the examiner stated that the Veteran then indicated that he did not have tinnitus. This finding is of limited significance, however, because the record documents clearly during the appeal period that the Veteran has had tinnitus. Thus, the Board must accept the existence of a current disorder, and determine whether it relates to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's DD Form 214 documents that he served in the US Army during the Korean Conflict. As he noted during his Board hearing, weapons fire during basic training caused acoustic trauma which resulted in ear pain, and in the onset of tinnitus. Based on the forgoing, exposure to excessive noise in service is recognized as consistent with the circumstances of the Veteran's service. 38 U.S.C.A. § 1154(a) (West 2002). The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury. The Veteran's service treatment records are negative for any complaints or diagnoses of tinnitus. However, the Veteran has indicated clearly that he experienced the onset of his tinnitus during his period of active duty service. Moreover, during his hearing before the Board, he stated that the ringing in his ears has continued in the decades since his discharge from service, and that the ringing is "always on." While his December 1952 Report of Medical Examination at separation indicated that no findings of tinnitus, the Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has experienced tinnitus since service. Moreover, there is no reason to doubt his credibility despite the finding noted in the August 2013 VA report. Additionally, pertinent to tinnitus, the Board notes that "an associated hearing loss is usually present" with tinnitus. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Moreover, "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. As noted above, the Veteran is already service connected for bilateral hearing loss due to in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred in service. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs