Citation Nr: 1338872 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-04 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to August 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Houston, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for tinnitus. In October 2012, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the Veteran's claims file. The Board has reviewed both the appellant's paper claims file and his file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT Tinnitus was caused by right ear hearing loss that in turn was caused by noise exposure during service and/or noise exposure directly. CONCLUSION OF LAW Tinnitus is proximately due to or the result of service-connected right ear hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that tinnitus began during service, after extensive noise exposure, and continued after service through the present. VA established service connection for the Veteran's right ear hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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. The Veteran's service separation certificate indicates many years of duty in aircraft maintenance and in packing. His service treatment records include reports of frequent hearing testing. In reports from 1960 through 1972 it was noted that from 1959 or 1960 forward he worked on the flight line and was exposed to noise from aircraft engines. From the late 1960s forward it was noted that he had high frequency hearing loss in his right ear. Reports from 1973 through 1978 reflect that he worked in packing and crating, that he was exposed to noise from hammering, power saws, and other shop equipment, and that he was advised to wear adequate hearing protection. A July 1981 medical history report reflects a history of noise exposure and hearing loss. In a November 2008 statement, the Veteran reported that he had hearing loss and tinnitus. He contended that both disorders were caused by aircraft noise during his service. On VA examination in March 2009, the Veteran reported that he began to experience tinnitus during service, when he was exposed to loud noise from aircraft engine. He stated that the tinnitus began in 1970 and that presently he had persistent bilateral tinnitus. Testing revealed bilateral hearing loss. The examiner provided the opinion that it is at least as likely as not that the Veteran's tinnitus is associated with his hearing loss. On VA examination in January 2011, the Veteran reported extensive noise exposure during service. He stated that he had tinnitus. He reportedly indicated that he did not remember when tinnitus started, but that he estimated it was ten to fifteen years before the 2011 examination. The examiner provided the opinion that it is more likely than not that the Veteran's right ear hearing loss was due to noise exposure in service. Noting that the Veteran had estimated that his tinnitus began in the 1990s, more than a decade after service, the examiner opined that it is less likely than not that the Veteran's tinnitus is due to noise exposure during service. The examiner opined that it is at least as likely as not that the Veteran's tinnitus is due to his hearing loss. In a July 2011 letter, a private physician wrote that the Veteran has severe tinnitus. In the October 2012 Board videoconference hearing, the Veteran reported that during service he was exposed to loud noises and he began to experience tinnitus. He explained that during service he had twelve years on the flight line, where he was exposed to aircraft engine noise. He stated that he also had duties in packing and crating and in engineering, with exposure to noise from hammering, sawing, and loud equipment. He indicated that presently he had constant tinnitus. Service records and the Veteran's statements demonstrate that he had extensive noise exposure in service. He has service-connected hearing loss that clinicians attribute to his noise exposure in service. In most of his recent statements the Veteran indicated that he began to experience tinnitus during service. In the 2011 VA examination the examiner understood the Veteran as indicating that he did not experience tinnitus until a number of years after service. Although there is mixed evidence regarding when the Veteran began to experience tinnitus, the VA clinicians who examined the Veteran in 2009 and 2011 both supported a causal connection between the Veteran's hearing loss and his tinnitus. VA established that the hearing loss in the Veteran's right ear is service-connected. In connecting the Veteran's tinnitus to his hearing loss, the clinicians did not distinguish between the service-connected right ear hearing loss and the non-service-connected left ear hearing loss. Resolving reasonable doubt in the Veteran's favor, the record supports service connection for tinnitus as secondary to service-connected right ear hearing loss. The Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs