Citation Nr: 0812933	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  07-24 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Huntington, West Virginia



THE ISSUES

1.  Entitlement to service connection for a claimed bilateral 
hearing loss.  

2.  Entitlement to service connection for claimed tinnitus.  



REPRESENTATION

Appellant represented by:	West Virginia Division of 
Veterans Affairs



WITNESSES AT HEARING ON APPEAL

The veteran and his spouse



ATTORNEY FOR THE BOARD

K. Fitch, Counsel



INTRODUCTION

The veteran served on active duty from May 1954 to May 1957.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an April 2006 rating decision by the RO that 
denied service connection for bilateral hearing loss and 
tinnitus.  

In March 2008, the veteran and his spouse, accompanied by the 
veteran's representative, testified at a hearing before the 
undersigned Veteran's Law Judge at the RO.  A transcript of 
these proceedings has been associated with the veteran's 
claims file.  

In March 2008, the Board granted the veteran's motion to have 
his case advanced on the Board's docket.  



FINDINGS OF FACT

The currently diagnosed bilateral hearing loss and tinnitus 
are shown as likely as not to have had their clinical onset 
following noise exposure during the veteran's period of 
active service.  



CONCLUSION OF LAW

By extending the benefit of the doubt to the veteran, his 
disability manifested by bilateral hearing loss and tinnitus 
are due to disease or injury that was incurred in service.  
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. 
§§ 3.303 (2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA) was enacted.  VCAA has since been codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.  This 
change in the law is applicable to all claims filed on or 
after the date of enactment of VCAA, or filed before the date 
of enactment and not yet final as of that date.  

The Board has considered this legislation, but finds that, 
given the favorable action taken below, no discussion of VCAA 
at this point is required.  


II.  Service connection.

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in line of duty, or for aggravation of a pre-existing injury 
suffered or disease contracted in line of duty.  38 U.S.C.A. 
§§ 1110, 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 
(2003).  

In addition, if a condition noted during service is not noted 
to be chronic, then generally a showing of continuity of 
symptomatology after service is required for service 
connection.  38 C.F.R. § 3.303(b) (2004).  Pertinent 
regulation also provides that 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) (2004).  

In determining whether service connection is warranted for a 
disability, 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 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. 
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In addition, in adjudicating a claim, the Board is charged 
with the duty to assess the credibility and weight given to 
evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); 
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the 
Court has declared that in adjudicating a claim, the Board 
has the responsibility to do so.  Bryan v. West, 13 Vet. 
App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. 
App. 614, 618 (1992).  

Here, the Board notes that the veteran's service medical 
records could not be obtained from the NPRC because they were 
apparently destroyed in the 1973 fire at that facility and 
that the RO's diligent efforts to obtain the service medical 
records proved be futile.  

The Board recognizes its heightened duty to explain its 
findings and conclusions and to consider benefit of the doubt 
and corroborative testimony such as buddy statements in cases 
where records are unavailable.  See O'Hare v. Derwinski, 1 
Vet. App. 365 (1991); Dixon v. Derwinski, 3 Vet. App. 261 
(1992); see also Veterans Benefits Administration Manual M21-
1, part VI, (Manual) paragraph 7.25(b).  

In this case, the veteran has been competently diagnosed with 
bilateral hearing loss and tinnitus.  Although the Board has 
reviewed the lay and medical evidence in detail, the Board 
will focus its discussion on evidence that concerns whether 
the veteran's current disabilities are related to a disease 
or injury in service.  See Gonzalez v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).  

Here, the veteran testified that he was exposed to acoustic 
trauma in service.  The veteran reported that he took part in 
maneuvers and live fire exercises in Germany as part of his 
service.  He was exposed to tank weapons, artillery and gun 
fire.  

The veteran testified that his hearing was muffled for up to 
a week after each of these sessions.  The veteran also 
indicated that no hearing protection was issued or worn 
during these maneuvers.  After service, the veteran indicated 
that he worked for Western Electric had no significant noise 
exposure.  

Finally, the veteran's spouse also testified that she met the 
veteran while he was still in the service and that his 
hearing was compromised at that time.  She would speak to the 
veteran and he often would not hear her.  Both the veteran 
and his spouse indicated that his hearing loss increased over 
the years after service and had been of a more serious level 
for the past 20 or so years.  

Following a careful review of the record, and resolving all 
reasonable doubts in the veteran's favor, the Board concludes 
that service connection for bilateral hearing loss and 
tinnitus is warranted.  In the present case, the Board finds 
the veteran's account of his medical history credible.  

The Board also observes that the veteran is competent to 
report the onset of symptoms, and continued symptomatology 
since that time.  See Washington v. Nicholson, 19 Vet. App. 
362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 70 
(1994) (holding that lay testimony is competent if it is 
limited to matters that the witness has actually observed and 
is within the realm of the witness's personal knowledge).  
While a VA examination will be necessary to evaluate the 
severity of the hearing loss and tinnitus, the competent 
evidence of record is sufficient to decide the current 
appeal.  

The Board finds that the evidence to be in relative equipoise 
in showing that the veteran's bilateral hearing loss and 
tinnitus as likely as not are the result of noise exposure to 
which he was exposed during active service.  

By extending the benefit of the doubt to the veteran, service 
connection for these conditions is warranted on this record.  



ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



 Department of Veterans Affairs