09-31 712

Citation Nr: 1101579 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 09-31 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied the Veteran's claim of entitlement to service connection for tinnitus. A hearing was held before the undersigned Veterans Law Judge at the RO in June 2010. The Board also notes that the Veteran, in his hearing testimony, indicated that he was pursuing a claim for service connection for a back disability; as there does not appear to be an adjudication of this issue in the Veteran's claims file, it is referred to the RO for appropriate action. FINDINGS OF FACT Resolving all doubt in the Veteran's favor, the evidence is at least in equipoise as to the question of whether the Veteran's currently diagnosed tinnitus is related to service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, his tinnitus is related to service. 38 U.S.C.A. §§ 1101 , 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (b) (1). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in February 2008. This document informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. Therefore, the Board finds that any notice errors did not affect the essential fairness of this adjudication, and that it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. The Veteran was also informed of the law as it pertains to effective dates by this letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No prejudice has been alleged in the timing of these notices, and none is apparent from the record; and the claim was readjudicated during the course of this appeal. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a timing defect may be cured by the issuance of fully compliant notification followed by a re- adjudication of the claim). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records, providing the Veteran with a VA examination, and providing the Veteran with a hearing. Consequently, and particularly in light of the favorable decision below, the Board finds that the duty to notify and assist has been satisfied in this appeal. The Veteran seeks service connection for tinnitus. Specifically, the Veteran alleges that his exposure to noise in basic training in service, and during his work in service setting up generators, caused his current tinnitus. Applicable laws provide that in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 . 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 (b). The chronicity provisions of 38 C.F.R. § 3.303 (b) are applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2010). The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Taking into account all relevant evidence, and resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for tinnitus. In this regard, the Board finds probative the Veteran's testimony that he has had tinnitus since service, as well as statements from friends who have noticed the Veteran complaining of tinnitus. The Board also finds probative a letter dated June 2010 from a private physician, who indicates that, after reviewing the Veteran's record and history, he feels that military noise exposure is by far the most likely cause for any tinnitus experienced by the Veteran. The Board also finds that acoustic trauma is consistent with the Veteran's service, where he was exposed to artillery fire during training, and to generator noise while setting up generators. The Board recognizes the opinion from a VA physician in a January 2009 VA examination report and an August 2009 addendum, in which he indicates that it is less likely than not that the Veteran's tinnitus is related to service. In support of this, the physician notes that the Veteran had no rateable level of hearing loss at the time of separation from service, as well as the lack of complaints of tinnitus in service and the gap in time between service and the date of the examiner's evaluation of over 35 years without evidence of any audiologic treatment in the intervening years. However, the Board notes that, while the Veteran's hearing loss was not of a compensable level upon his discharge, it does appear that there was a change in the Veteran's audiometric readings from his December 1968 report of entrance examination, to his September 1972 report of separation examination. Further, the Board notes that the Veteran's service records show several treatments for what appear to be upper respiratory infections, which at times were shown to have a component of ear pain as well. Thus, considering the private physician's statement, the Veteran's service medical records, the Veteran's own statements, and statements he submitted from others, the Board finds the evidence at least in equipoise as to the question of whether the Veteran's tinnitus is related to service. As such, the benefit of the doubt is granted to the Veteran and service connection is therefore warranted for tinnitus. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs