Citation Nr: 1621521 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 12-13 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to September 1955, and on active duty for training from December 1985 to September 1986, and from April 1988 until July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously remanded by the Board in February 2015 and July 2015, and has since been returned to the Board for further appellate review. In November 2014, the Veteran presented testimony by live videoconference before the undersigned Veterans Law Judge. A transcript of that hearing is located in the Virtual VA electronic claims processing system. This Veteran's case consists entirely of documents in the Veterans Benefits Management System (VBMS) and Virtual VA. With the exception of the November 2014 hearing transcript, the documents located in Virtual VA are duplicative of those in VBMS, or irrelevant to the issue on appeal. 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). FINDING OF FACT The Veteran's tinnitus is etiologically related to his service-connected bilateral hearing loss disability. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim of entitlement to service connection are moot. Service Connection Service connection is warranted for a disability that is aggravated by, proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all 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 Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Merits The Veteran is service connected for bilateral hearing loss due to acoustic trauma he sustained in service. The Veteran now seeks entitlement to service connection for tinnitus, which he describes as having its onset in 2004. At a July 2005 VA audiology evaluation, the Veteran reported intermittent tinnitus in both ears for one year. The audiologist opined that the Veteran's tinnitus was likely not related to acoustic trauma sustained in service. In support of that opinion, the audiologist noted the delayed onset of the Veteran's tinnitus, and that noise-induced tinnitus would be expected to be constant rather than intermittent as reported by the Veteran. The audiologist did not address whether the Veteran's tinnitus was etiologically related to the Veteran's bilateral hearing loss. At an April 2008 private audiology evaluation, the Veteran reported tinnitus symptoms of hearing bells and a rushing noise. The audiologist noted that the Veteran had worn hearing aids for 6 years that likely masked some of his tinnitus symptoms. The audiologist opined that the Veteran's tinnitus was more than likely a result of his in-service noise exposure. The audiologist did not provide a rationale to support that conclusion, nor did they review the Veteran's claims folder, and therefore the opinion of the 2008 audiologist is afforded minimal probative weight. The Veteran was afforded additional VA audiology evaluations in January 2009, January 2010, April 2015, and December 2015. The Veteran consistently reported the same tinnitus symptoms, and the audiologists consistently opined that the Veteran's delayed onset tinnitus was less than likely related to in-service noise exposure. No opinions were provided as to whether the Veteran's tinnitus was etiologically related to his bilateral hearing loss. The Veteran was afforded another VA audiology evaluation in October 2015. Upon review of the Veteran's claims file and in-person examination, the audiologist opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus was a known symptom associated with hearing loss. The audiologist further opined that the Veteran's delayed-onset tinnitus was less than likely related to his in-service noise exposure as tinnitus did not have a delayed onset, nor was it progressive or cumulative. Based on the foregoing, the Board finds that entitlement to service connection for tinnitus is warranted. The Veteran is currently diagnosed with tinnitus, which had its onset in 2004. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The October 2015 VA audiologist has opined that the Veteran's tinnitus is etiologically related to the Veteran's service-connected bilateral hearing loss. The Board finds the opinion of the October 2015 audiologist on that point to be adequate, as it was based on a full review of the Veteran's medical history, claims file, and in-person examination, and was also supported by an adequate rationale. There is no conflicting medical opinion of record regarding whether the Veteran's tinnitus is caused by his bilateral hearing loss disability. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's the tinnitus is etiologically related to his service-connected bilateral hearing loss. Having met the criteria for secondary service connection, entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER Entitlement to service connection for tinnitus, to include as secondary to service connected bilateral hearing loss, is granted. ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs