Citation Nr: 1803890	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-41 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. E. Metzner, Associate Counsel







INTRODUCTION

The Veteran served on active duty from May 1962 to July 1966.  The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In September 2014, the RO granted service connection for bilateral hearing loss.  The Veteran has not expressed disagreement with the effective date or evaluation assigned.  Thus, as that decision represents a full grant of the benefit sought with respect to that issue, such matter is no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977).

The Veteran submitted additional evidence in March 2015 after certification of the appeal to the Board.  In this case, however, the Veteran filed his substantive appeal in October 2014.  Under 38 U.S.C. § 7105 (e), waiver of initial RO review of evidence submitted to the RO or the Board by the Veteran or his representative is presumed in cases when the substantive appeal was filed after February 2, 2013.  See 38 U.S.C. § 7105 (e) (2012); VA Fast Letter 14-02 (May 2, 2014).  Thus, given the date of the substantive appeal, waiver of RO review is presumed.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's tinnitus is etiologically related to the acoustic trauma he sustained in active service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. § 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  In light of the favorable determination to grant service connection for tinnitus, any deficiency found in VA's duties to notify and assist is rendered moot.  There is no prejudice to the Veteran in proceeding to decide this issue.

Merits

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  

With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran seeks service connection for tinnitus due to hazardous noise exposure in service.  Specifically, he contends that his current tinnitus was caused by noise trauma he experienced in the performance of his duties as a radioman.  In light of the Veteran's contentions and after a thorough review of the evidence, the Board finds that service connection for tinnitus is warranted.  

Initially, the Board notes that the Veteran's service treatment records (STRs) are silent for complaints of, or treatment for, tinnitus.  However, consistent with the September 2014 Statement of the Case (SOC), the Board concedes in-service exposure to acoustic trauma, as the Veteran was exposed to high levels of noise as a result of his military occupational specialty (MOS) as a naval radioman.  

Significantly, in March 2015, a private audiologist stated that the Veteran was diagnosed with tinnitus, caused by years in the Navy as a shipboard radioman from 1962 to 1964.  See March 2015 Crystal Community ENT record.  The private audiologist also opined that radio noise exposure was more likely than not to have caused the Veteran's tinnitus.  Id.  There are no contrary opinions of record.  

The Board acknowledges that, in December 2011, the Veteran underwent a VA audiological examination to determine the etiology of his tinnitus.  The examiner was unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to mere speculation.  

In sum, the board finds that the requisite elements of service connection are met.  The Veteran has a current disability of tinnitus, he sustained acoustic trauma in active service, and his private audiologist provided a positive nexus opinion establishing a link between the Veteran's current tinnitus and active service.  Accordingly, service connection for tinnitus is warranted.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is granted. 




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs