BVA9501278 DOCKET NO. 93-10 028 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from December 1948 to September 1952. It has also been reported that he served in the National Guard from 1974 to 1991; however, the dates of active duty for training and inactive duty training have not been verified for the record. This appeal to the Board of Veterans' Appeals (Board) arises from the March 1992 and March 1993 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which denied service connection for bilateral tinnitus. A decision of the Board in August 1982 denied service connection for hearing loss and tinnitus. In July 1990, the RO concluded that no new and material evidence had been submitted to reopen the veteran's claim for service connection for tinnitus. The veteran was notified of that determination, but he filed no appeal. The March 1992 rating decision found that no new and material evidence had been presented. The rating decision in March 1993, while conceding that evidence recently added to the record was new and material, held that the evidentiary record as a whole did not establish service connection for tinnitus. The Board agrees that the National Guard medical records and the VA treatment records dated from 1981 to 1992 which were added to the file since July 1990 constitute new and material evidence. Therefore, the Board 's review of this case will be on the basis of all the evidence of record. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he is entitled to service connection for bilateral tinnitus. The veteran argues that he sustained acoustic trauma during active service, and during active duty for training for National Guard service from 1974 to 1991, which resulted in tinnitus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for bilateral tinnitus is warranted by the evidence of record. FINDINGS OF FACT 1. Service connection for tinnitus was denied by an August 1982 decision of the Board and by an unappealed July 1990 rating decision; the veteran's claim has been reopened by the receipt of new and material evidence, consisting of additional service medical records and other evidence. 2. Service connection has been established for bilateral sensorineural hearing loss caused by acoustic trauma in service. 3. The veteran has bilateral tinnitus due to acoustic trauma in service. CONCLUSION OF LAW Bilateral tinnitus due to acoustic trauma was incurred in service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107(b), 5108, 7104, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.156(c), 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is plausible. There is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing his claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background Service medical records indicate that the veteran's hearing was normal at the time of his enlistment and separation examinations for his period of active duty and there were no complaints of tinnitus. As well, there were no references to complaints or findings of tinnitus at the time of VA examination in March 1957. The report of his February 1974 examination for enlistment in the Montana Army National Guard also indicates no hearing-related problems. At the time the veteran filed his initial claim for service connection for tinnitus, in April 1981, he reported that this disorder began in 1980 and that he was treated for same in a service dispensary. Statements from several of the veteran's National Guard comrades, received in September 1981, attested to his removal from noise exposure during service because of hearing problems. No specific references to tinnitus were made. The record contains an August 1982 statement by the veteran in which he reported constant ringing in his ears and dizzy spells which began with a loud noise. In a statement submitted in September 1982 the veteran again reported that he was experiencing ringing in the ears. In a statement submitted in October 1989, the veteran asserted that during his active service he worked around airplanes for 30 months without ear protection. The veteran reported that he developed a loud ringing and hearing loss as a result. He also reported his post- service employment as a barber. The report of a January 1990 audiological evaluation conducted by the VA noted the veteran's complaint of a sudden change in hearing with roaring tinnitus, right ear, which began 3 months earlier. In March 1992 there were received into the claims folder previously unconsidered VA treatment records for April 1981 through February 1992. Clinical records for April 1981 indicate that the veteran reported that he had had ringing in both ears over the previous 30 years of increasing severity. The April 1981 diagnosis was hearing loss. VA records for May 1981 disclose that the veteran reported progressive hearing loss and tinnitus over the previous 20 years. The examiner noted the veteran's particular concern about tinnitus on that occasion. Outpatient records for December 1989 indicate that the veteran complained of ringing and roaring in his ears. In a March 1992 statement in support of his claim, the veteran contended that problems with hearing loss and ringing in his ears began during active service. During his October 1992 personal hearing the veteran testified that towards the end of his active service and immediately after separation, he experienced ear problems which he described as "the ringing out of the ears." The veteran described his service in the National Guard as an initially short period of service with tanks during which ear protection was not used. During most of his remaining 14 to 15 years of Guard service, the veteran reportedly served as cannoneer with 155 millimeter Howitzers. He testified that ear protection was used during annual trips to the firing range with the Howitzers. The veteran reported that he was eventually given a different assignment in order to avoid acoustic trauma from proximity to the Howitzers. His civilian occupations, retail clerk and barber, reportedly did not involve exposure to noise. The veteran's February 1974 through May 1991 National Guard medical records, which reflect gradual hearing loss beginning in 1978, were associated with the claims folder in November 1992. Clinical records for March 1980 indicate that the veteran complained of ear fullness and ringing, sore throat and generalized muscle ache, and was diagnosed as having otitis media and an upper respiratory infection. Included in the National Guard records is a statement by Dr. Steven P. Berberet, presumably a private physician, apparently submitted between June 1982 and March 1985, which advised that the veteran had extreme damage to the inner ears and requested that he not be exposed to large guns or loud noises in order to prevent deafness. Also of record is the March 1985 statement of a Montana National Guard occupational health nurse advising that the veteran should not be exposed to hazardous noise because of his significant hearing loss. During a March 1993 VA audiological case history interview the veteran reported constant bilateral tinnitus, of uncertain onset and repeated his assertions of exposure to noise from aircraft, tanks, and artillery, and one episode of dizziness and nausea 12 years earlier. Entitlement to Service Connection for Bilateral Tinnitus Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be established for disability due to disease or injury incurred in or aggravated during a period of active duty for training or injury incurred in or aggravated during inactive duty training. 38 U.S.C.A. §§ 101(24), 106. Such a determination requires a finding of current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Each disabling condition as shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154. Additionally, the regulations provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted above, the veteran's claim for service connection for tinnitus was previously denied by the Board and later again by the RO. Submitted subsequently into the record were additional service medical records, as well as VA records, dated in the early 1980's, reflecting the complaint of tinnitus, attributed to acoustic trauma to which the veteran was exposed during the performance of his military duties. Pursuant to 38 C.F.R. § 3.156(c), where new and material evidence consists of additional service medical records, as in this case, the former decision must be reconsidered. The totality of the record clearly establishes that the veteran sustained acoustic trauma during active duty and during his National Guard service. The veteran currently complains of bilateral tinnitus as evidenced by the March 1993 VA audiological evaluation. Additionally, clinical records indicate that as early as March 1981 the veteran complained of chronic tinnitus of 30 years' duration. VA medical records reflect numerous reports of tinnitus which were made for the purpose of obtaining treatment only. Moreover, the veteran's October 1992 testimony indicates that, although there was no complaint of tinnitus on his service medical records, he experienced substantial noise expose during active service. The veteran testified that he suffered from tinnitus during the end of his active duty period and immediately after separation, which is consistent with the veteran's April 1981 report of ringing in both ears for a period of 30 years. The Board finds that, although there is some question as to the exact date of onset of the veteran's tinnitus, it appears from the record that the tinnitus clearly resulted from acoustic trauma. The Board finds that whether the veteran sustained the acoustic trauma during active service or during active duty for training is irrelevant in this case. The fact remains that he was exposed to a noisy environment during both periods and as a result thereof developed tinnitus. When, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a veteran's claim, the benefit of the doubt should be given to the claimant. 38 U.S.C.A. § 5017(b); 38 C.F.R. § 3.102. The Board finds that the evidence concerning the issue of service incurrence of tinnitus is at least in relative equipoise. Accordingly, under 38 U.S.C.A. § 5017(b), the matter shall be resolved in favor of the veteran. Therefore, on the basis of new and material evidence consisting, in part, of additional service department records, service connection for bilateral tinnitus is established. ORDER Service connection for bilateral tinnitus is granted. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.