Citation Nr: 1337651 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-09 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1954. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested to testify via videoconference before a member of the Board, and a Board videoconference hearing was duly scheduled for March 2013. However, the Veteran withdrew his hearing request in January 2013, requesting that this matter be decided on the record. In May 2013, the Board remanded this matter for additional development and readjudication. The record before the Board consists of the Veteran's electronic files in programs known as Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The Veteran's tinnitus is related to his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss have been met. 38 U.S.C.A. § 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate the claim herein decided. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013) before the Board decides the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2013). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In his April 2011 claim, the Veteran asserted that his tinnitus originated during active service in January 1954. In an additional statement at that time, he reported that he was assigned to flight line for duty with jet and prop aircraft instead of in an office. In his April 2012 substantive appeal, the Veteran indicated that air bases where he was assigned did not have office equipment repair facilities or an amount of office equipment repairs to require his services on a full time basis. He reported that he went to the flight line to assist the mechanics and others who worked on weapons and aircraft and worked around loud noises quite a bit. The Veteran indicated that he noticed ringing in his ears shortly after he left active duty but did not seek medical care because it did not prevent him from working. Service personnel records list his occupational specialty as 40150 (Office Machine Repairman). While the record shows that the majority of the Veteran's service treatment records were destroyed in a fire at the National Personnel Records Center, the sole record found, the Veteran's October 1954 service separation examination report, contains no finding or diagnosis of tinnitus. Under such circumstances, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A post-service VA treatment note dated in June 2011 shows that the Veteran denied tinnitus. A July 2011 VA audiology consult note indicates that no tinnitus was reported at that time. According to an August 2012 VA audio examination report, the Veteran reported that he served in the Air Force for nearly four years during the Korean War, did not participate in combat activity, fired weapons with his right hand, was not part of a hearing conservation program, had flight line duty around jet aircraft, and did not wear hearing protection. The examiner marked that the Veteran did not report recurrent tinnitus. Thereafter, the examiner indicated that there was no diagnosis of tinnitus, as the Veteran had not claimed the condition and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The stated rationale was that there was no claim for tinnitus by the Veteran to render an opinion. In an October 2012 Decision Review Officer decision, the Veteran was awarded entitlement to service connection for bilateral hearing loss. Thereafter, in a March 2013 statement, the Veteran's representative argued that the findings of the August 2012 VA examination were ambiguous and that there had been no discussion on the question of whether the reported tinnitus was secondary to the Veteran's service-connected hearing loss. As noted above, the Board remanded this matter for additional development in May 2013, finding that the August 2012 VA examination report was inadequate for adjudicative purposes. It was noted that conclusions reached by the August 2012 VA examiner as well as the assertions of the Veteran in this matter were found to be unclear as to the current nature, onset, and causation of the claimed tinnitus. In light of the cumulative record discussed above, the originating agency was instructed to arrange for the Veteran to be afforded an additional VA examination regarding the nature and etiology of his claimed tinnitus. In an August 2013 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire report, the examiner noted his review of the Veteran's claims file as well as VA medical records. The examiner marked yes as to whether the Veteran reported recurrent tinnitus. The Veteran was noted to report that he had intermittent tinnitus of unknown duration and frequency. The examiner commented that the onset of the tinnitus was unclear. As to the etiology of the Veteran's tinnitus, the examiner highlighted that the Veteran had a diagnosis of clinical hearing loss, opining that tinnitus was at least as likely as not (50% probability or greater) a symptom associated with the hearing loss. The examiner further stated that tinnitus was known to be a symptom associated with hearing loss. The examiner then opined that tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure. In his cited rationale, the examiner indicated that his review of the claims file showed a normal whisper test at separation. He further highlighted that the Veteran denied tinnitus on a VA hearing test in 2011 and again denied tinnitus on his rating exam in 2012. It was acknowledged that the Veteran reported that he did not realize that tinnitus had been present for a long time until recently. As there was no hearing loss during military service and no mention of tinnitus in the claims file, the Veteran previously denied tinnitus multiple times in audiological history, and the history of tinnitus on examination that day was noted to be vague and contradictory, the examiner determined that it was less than likely that tinnitus was the result of military service. As an initial matter, the Board notes that the post-service evidence of record does reflect complaints of tinnitus. It is also undisputed that the Veteran is currently receiving VA compensation benefits for a bilateral hearing loss disability. In addition, a nexus or causal relationship between the Veteran's current tinnitus and his service-connected bilateral hearing loss has been shown. In view of the totality of the evidence, including the current findings of tinnitus, the previous award of entitlement to service connection for bilateral hearing loss, and the conclusions reached by the examiner in the August 2013 VA examination report that the Veteran's tinnitus was at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, the Board has determined that the Veteran's tinnitus is the proximate result of his service-connected bilateral hearing loss. ORDER Entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs