Citation Nr: 1616420 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 11-07 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 2002 to December 2002, and February 2003 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the rating decision on appeal, the RO also denied service connection for a traumatic brain injury (TBI), right shoulder disorder, left knee disorder, and hearing loss, and these claims were included in the Veteran's Notice of Disagreement (NOD). The RO again denied service connection for hearing loss and a TBI in a December 2009 rating decision, to which the Veteran again filed a timely NOD. However, none of these claims are currently in appellate status. Service connection was awarded for a TBI and right shoulder disorder in July 2013 and January 2010 rating decisions, respectively. A statement of the case (SOC) was issued on the left knee claim, but the Veteran did not perfect the appeal. In July 2015, prior to certification of the appeal to the Board, the Veteran withdrew his claim for hearing loss. As such, the claims involving a TBI, right shoulder disorder, left knee disorder, and hearing loss will not be addressed below. In November 2015, the Veteran was scheduled for a hearing with the Board. He did not attend and has not requested rescheduling or offered an explanation for his absence. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. FINDING OF FACT Tinnitus is related to the service-connected TBI. CONCLUSION OF LAW The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would allow aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). The Veteran has current tinnitus, documented on VA examination in March 2013. Tinnitus was not documented in the Veteran's service treatment records (STRs), including on entry and separation from service. However, the Veteran had a high probability of exposure to hazardous noise while serving in the Marine Corps as a mortarman (MOS 0341). M21-1.III.iv.4.B.3.d. Moreover, STRs document that he was "routinely noise exposed," and he also sustained a ruptured eardrum during service. VBMS Entries 3/4/08 p.22/84; 52/68. On the matter of nexus, several VA examinations have been conducted. On VA examination in August 2009, the examiner found no documentation of tinnitus in the service treatment records, including in the records surrounding an in-service TBI sustained in a motor vehicle accident (MVA). The examiner did not address the in-service ruptured eardrum. The examiner stated that the Veteran's hearing was normal during service, however, his noise exposure from incoming mortars and machine guns was noted. Post-service, the Veteran denied occupational noise exposure and reported some recreational noise exposure from playing the bass guitar. He reported an onset of tinnitus in 2004 with continuous symptoms since. The examiner opined that because there was no record of tinnitus in the STRs, it was less likely than not that the condition was the result of military service. In March 2013, a VA examination was conducted for the Veteran's TBI. The report is organized into sections pertaining to different residual symptoms of the TBI. In the section of the report pertaining to "Additional Residuals," the examiner opined that tinnitus was a residual of the TBI. The examiner based this finding on the fact that the Veteran has experienced tinnitus since his brain injury. According to the examination worksheet instructions, an examination was next provided for tinnitus/hearing loss. In an accompanying March 2013 audiological VA examination report, the Veteran reported ringing in the ear since 2004 when he awoke from his coma following the MVA. The same in-service and post-service history of noise exposure as was given in August 2009 was recounted. The examiner also did not address the in-service ruptured eardrum. The examiner opined that it was less likely than not that tinnitus was caused by or a result of military noise exposure or the in-service MVA, citing the absence of documentation of tinnitus in the STRs and the Veteran's currently normal hearing. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to secondary service connection for his tinnitus, as caused by the service-connected TBI. The Veteran's tinnitus is not already contemplated in the rating assigned for his service-connected TBI, so this award of service connection does not violate the rule against pyramiding. See July 2013 Rating Decision (awarding service connection for a TBI); 38 C.F.R. § 4.14. There is no evidence to the contrary of the March 2013 VA examiner's report on the TBI. While the August 2009 and March 2013 audiological examination reports contain a negative nexus opinion based on direct service connection, the examiners did not offer any opinion on the matter of secondary service connection. The examiners determined that tinnitus was unrelated to the in-service MVA itself, but did not opine on whether it was a residual of the service-connected TBI. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). While a remand for a more thoroughly explained opinion could be undertaken, the March 2013 TBI report is adequate for the purposes of adjudication. The examiner based his conclusion on a review of the electronic claims file, and the Veteran's competent and credible reports of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He provided a rationale for the conclusion reached based on an assessment of the Veteran's current and in-service symptoms. The evidence is at least in equipoise in showing that the Veteran has tinnitus attributable to the service-connected TBI. An award of secondary service connection based on causation is no less favorable to the Veteran than an award of service connection on a direct basis, and remand is not warranted to address the inadequacies of the August 2009 and March 2013 audiological VA examination reports. See e.g., Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran's report of an in-service injury and relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. Given the favorable disposition of the claim for service connection for tinnitus, all notification and development actions needed to fairly adjudicate the claim have been accomplished. ORDER Service connection for tinnitus is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs