Citation Nr: 1606024	
Decision Date: 02/17/16    Archive Date: 03/01/16

DOCKET NO.  08-37 833	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for tinnitus.


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran served on active duty from December 1962 to December 1964.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

The Board denied the Veteran's claims in a July 2012 decision. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims. In a May 2013 Court Order, pursuant to a Joint Motion for Remand, the Veteran's claims for service connection for bilateral hearing loss and tinnitus were remanded to the Board for additional development

In August 2013, the Board remanded this issue for additional development.  Also, service connection for bilateral hearing loss was also remanded.  In a November 2013 rating decision, service connection for bilateral hearing loss was granted.  As that is a full grant of the benefit sought with regard to that issue, it is no longer on appeal. 

The Board notes that while the Veteran was previously represented by a private attorney, the attorney withdrew representation in a letter dated January 4, 2016.  The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney's withdrawal of representation.  Since the private attorney withdrew, the Veteran has not appointed a new attorney, agent, or representative, and he is thus unrepresented.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

Probative medical evidence shows that tinnitus is secondary to service-connected hearing loss. 


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2015).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2015). 

In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2015).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). 

A December 2006 QTC examination report shows that the Veteran stated he has had tinnitus since 1964 which began when he was exposed to close Howitzer fire.  The tinnitus recurs at the frequency of five times per week for a 42 year duration and is in the left ear.  The diagnosis was intermittent tinnitus in the left ear.  The examiner opined that the etiology of the left side tinnitus was at least as likely as not due to the hearing loss.  

An October 2013 VA hearing loss and tinnitus examination report shows that the Veteran did not report recurrent tinnitus.  It was noted that the Veteran stated he experienced immediate onset of tinnitus while in service following an incident of noise exposure with Howitzer guns.  Tinnitus resolved within a week by his report.  The examiner stated that an opinion was not needed as the Veteran clearly denied current complaints of tinnitus during the interview.  

In this case, the Veteran asserts that he has intermittent, recurring, tinnitus.  Thus, the Board is not swayed by the October 2013 VA examination report noting the Veteran denied current complaints of tinnitus at that time, since the Veteran has never asserted having constant tinnitus.  A finding on the one day in October 2013 does not negate the presence of a current disability.  The Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence.  Charles v. Principi, 16 Vet. App. 370 (2002).  Here, given the nature of the disability, the Veteran's lay statements are sufficient to establish tinnitus as a current disability.

Further, an examiner in a December 2006 QTC examination report opined that the Veteran's tinnitus was as likely as not due to hearing loss which is now service-connected.  The Veteran was recently granted service connection for bilateral hearing loss.  There is no opinion to the contrary.  Thus, the evidence of record is sufficient to find that the Veteran has recurrent, intermittent, tinnitus secondary to service-connected bilateral hearing loss.  Resolving all reasonable doubt in the Veteran's favor, the claim for service connection for tinnitus, secondary to service-connected hearing loss, is granted.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs