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