Citation Nr: 1801219	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-13 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Crawford, Associate Counsel







INTRODUCTION

The Veteran had active military service in the U.S. Army from March 1968 to March 1970.  

This appeal comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

While the Veteran was scheduled to appear at a hearing before the Board in April 2017, the Veteran's representative submitted a statement indicating that the Veteran was withdrawing his request for a hearing.  See April 2017 Statement in Support of Claim.  As such, the Board deems his request for a hearing withdrawn.  38 C.F.R. § 20.704(e) (2017).

Also as an initial matter, the Board notes that the issue of entitlement to service connection for bilateral hearing loss has been perfected, but not yet certified to the Board.  The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue.  As such, the Board will not accept jurisdiction over it at this time, but the issue will be the subject of a subsequent Board decision, if otherwise in order.


FINDING OF FACT

It is reasonably shown that the Veteran's tinnitus is related to his service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C. §§ 5103 , 5103A; 38 C.F.R. § 3.159.  However, inasmuch as the benefit sought is being granted herein, there is no reason to belabor the impact of VA's duty to notify and assist on the matter; any notice defect or duty to assist failure is harmless.  Accordingly, the Board will address the merits of the claim.

II.  Factual Background, 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. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).  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).

A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d) (2017).

Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as 'chronic' in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  Sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a).  Similarly, where as in this case, 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 (2015) (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).

With a chronic disease shown 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 cause.  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.  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) (2017).

Certain chronic diseases, to include tinnitus (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system).  38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1) (2017).
Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2017).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence.  Hayes v. Brown, 5 Vet. App. 60 (1993).

The Veteran is seeking service connection for tinnitus.  The Veteran contends that he was exposed to loud and continuous noises while he was on the rifle range during basic training.  After hours on the shooting range, the Veteran was left with ringing in his ears.  The Veteran also contends he was exposed to constant machine gun fires and explosions, and did not wear protection over his ears.  See April 2017 Correspondence.  The Veteran's service personnel records show that he served in the U.S. Army and completed basic combat training.  Therefore, it is conceded that the Veteran likely was exposed to at least some acoustic/noise trauma while in service.  What remains to be established is that the Veteran's current tinnitus is related to his service, to include his exposure to acoustic/noise trauma therein. 

The Veteran's service treatment records, to include his January 1970 service separation report of medical examination and report of medical history, are silent for any complaints, findings, treatment, or diagnosis of tinnitus.  

Postservice VA treatment records show that in October 2004, the Veteran was referred for an otolaryngology consult due to complaints of tinnitus and nasal drainage.  The Veteran reported having a history of tinnitus over time, which was greater in the right ear than the left.  The treating physicians assessed the Veteran as having tinnitus, "secondary to noise exposure and associated [hearing loss]."  Thereafter, he continued to be treated for complaints related to tinnitus.

In February 2015, the Veteran was afforded a VA examination for hearing loss and tinnitus.  The Veteran stated that after separating from service, he "played [the tinnitus] off" until it intensified later on in life.  The VA examiner diagnosed tinnitus, but opined that it was at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus was known to be a symptom associated with hearing loss.  The VA examiner did not comment on whether the Veteran's hearing loss was directly related to his service.

In April 2017, the Veteran submitted a private medical treatment record which included a diagnosis of tinnitus.  The private physician opined that "without any other family history, noise exposure, [it is] more than likely that military noise exposure caused [the Veteran's] tinnitus [and] contributed to his hearing loss."  

The Board has reviewed the foregoing medical evidence.  As there are no negative medical opinions of record regarding whether the Veteran's tinnitus is related to his military service, the Board finds that the evidence weighs in the Veteran's favor.  Accordingly, service connection for tinnitus is warranted.  


ORDER

Service connection for tinnitus is granted.  




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs