Citation Nr: 1523812 Decision Date: 06/04/15 Archive Date: 06/16/15 DOCKET NO. 13-35 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1984 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. The Veteran has a current tinnitus disability. 3. The Veteran has experienced "continuous" symptoms of tinnitus since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1112, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The claim for service connection for tinnitus has been considered with respect to VA's duties to notify and assist. Given the favorable outcome (grant of service connection), further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, tinnitus (as an organic disease of the nervous system) is a "chronic disease" under 38 C.F.R. § 3.309(a). Where there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b) . Where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus (as an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Legal Analysis The Veteran asserts that a current tinnitus disorder is related to acoustic trauma sustained in service. Specifically, the Veteran attributes the tinnitus to hearing loss that began in service, and states that symptoms of tinnitus have been continuous since service separation. See May 2011 VA Form 21-4138. The Board finds that the Veteran sustained acoustic trauma in service. During the April 2012 VA audiological examination, the Veteran reported in-service hazardous noise exposure in the form of artillery fire, grenades, and other military noise. The DD Form 214 lists a military occupational specialty (MOS) of machine gunner. Although this particular MOS is not listed in Veterans Benefits Administration (VBA) Fast Letter 10-35, similar specialties, such as infantry and field artillery, have been recognized as entailing a high probability of hazardous noise exposure. See VBA Fast Letter 10-35 (September 2, 2010) (modifying the development process in claims for hearing loss and/or tinnitus). The Board finds that the Veteran's competent lay account of his duties in service and exposure to military noise are consistent with the circumstances, conditions, and hardships of his service and are, therefore, credible. 38 U.S.C.A. § 1154(a) (West 2014). For these reasons, the Board finds that there was in-service acoustic trauma. The Board next finds that the Veteran has a current tinnitus disability. During the April 2012 VA audiological examination, the Veteran complained of bilateral tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Board finds the Veteran's report of tinnitus symptoms to be competent and credible; therefore, the Veteran's statements establish a current tinnitus disability. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the Veteran has experienced "continuous" symptoms of tinnitus since service separation. The service treatment records, including the February 1990 service separation examination, do not include any complaints of ringing in the ears; however, in the January 2011 VA Form 21-526, the Veteran reported that periodic tinnitus began in January 1988. The Veteran has consistently reported that the tinnitus has been intermittent since service separation. The record includes several lay statements from individuals including the Veteran's wife, a friend, and a co-worker who indicate that the Veteran has complained of periodic ringing in the ears since service separation. Although the Veteran also reported civilian occupational noise exposure as a carpenter for ten years, both the Veteran and his co-worker provided statements indicating that hearing protection was used on a regular basis. In sum, the evidence demonstrates that there were no complaints related to hearing loss or tinnitus symptoms in service; however, there are several lay statements to support a finding that the Veteran has had "continuous" symptoms of the current tinnitus disability since service separation. The Board resolves reasonable doubt in the Veteran's favor to find that symptoms of tinnitus have been continuous since service separation so as to meet the criteria for presumptive connection for tinnitus based on "continuous" post-service symptoms. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. Because the Board is granting the Veteran's claim for service connection for tinnitus on a presumptive theory of entitlement under 3.303(b) (continuous post-service symptoms), the Board does not reach the additional presumptive theories of chronic symptoms in service under 38 C.F.R. § 3.303(b), presumptive service connection for tinnitus manifesting to 10 percent within one year of service separation under 38 C.F.R. § 3.307, or the theory of direct service connection under 38 C.F.R. § 3.303(d). ORDER Service connection for tinnitus is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs