Citation Nr: 0716946 Decision Date: 06/07/07 Archive Date: 06/18/07 DOCKET NO. 05-21 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from November 1974 to November 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in July 2004, of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The veteran perfected his appeal and elected to have the case decided without a hearing. During the pendency of the appeal, the RO granted the veteran's claim of service connection for bilateral hearing loss and assigned a noncompensable rating. The veteran has not expressed disagreement with the rating or the effective date of the grant of service connection. FINDING OF FACT The evidence is in equipoise on the question of whether the veteran's tinnitus is etiologically related to noise exposure during service. CONCLUSION OF LAW With the resolution of reasonable doubt, service connection for tinnitus is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303(d) (2006). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for tinnitus is resolved in the veteran's favor, VCAA compliance as to the duty to notify and to assist is moot. REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service records show that the veteran served in an engineer unit. The service medical records show that the veteran had pre- existing hearing loss, and the service medical records contain no complaint, finding, or history of tinnitus. After service, VA records disclose that in July 1999 the veteran complained of tinnitus. On VA audiological evaluation in November 2003, the veteran described constant ringing in his ears for 30 years. He stated that during service he was in an engineer unit, and he was exposed to the noise from heavy equipment. The audiologist expressed the opinion that the veteran's tinnitus was in part due to occupational noise exposure while on active duty. On VA audiological examination in June 2004 with the same complaint and history as the veteran provided in November 2003, the examiner expressed the opinion that most likely the veteran's tinnitus shared the same etiology as his hearing loss. On VA audiological examination in April 2005 with the same complaint and history as the veteran provided in November 2003, and after a review of the veteran's file, the examiner expressed the opinion that the etiology of the current tinnitus could not be resolved without resort to speculation as the veteran had other health problems, namely, smoking, diabetes, and hypertension, which could be related to tinnitus. In a statement, dated in April 2006, a private audiologist reported that noise exposure is a major factor affecting the prevalence of tinnitus. Service connection is in effect for bilateral hearing loss on the basis of aggravation of pre-existing hearing loss. Principles of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Analysis There is favorable evidence of noise exposure during service as evidenced by the veteran's duties with an engineer unit, and there is favorable and uncontradicted medical evidence that the veteran currently has tinnitus. The remaining question is whether there is medical evidence of a nexus or link between the veteran's current tinnitus and noise exposure during service. There is evidence in favor of a nexus as one VA audiologist expressed the opinion that the veteran's tinnitus was in part due to occupational noise exposure while on active duty. Another VA examiner expressed the opinion that most likely the veteran's tinnitus shared the same etiology as his hearing loss, and hearing loss has been adjudicated as a service-connected disability by aggravation. Also a private audiologist reported that noise exposure is a major factor affecting the prevalence of tinnitus. The evidence against a nexus consists of a VA audiologist who expressed the opinion that it would be speculative to relate tinnitus to noise exposure to during service because the veteran had other health problems, namely, smoking, diabetes, and hypertension, which could be related to tinnitus. As service connection may be granted for any disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, and as the there is favorable evidence of noise exposure during service and medical evidence of current tinnitus, and as the evidence for and against the claim on the question of a nexus is in equipoise, under the benefit-of-the-doubt standard of proof, resolving reasonable doubt in the veteran's favor, service connection for tinnitus is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(d). ORDER Service connection for tinnitus is granted. ____________________________________________ GEORGE E. GUIDO JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs