Citation Nr: 1303699	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  09-32 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran had active service from July 1984 to July 2004.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDING OF FACT

The Veteran's tinnitus is related to service.  


CONCLUSION OF LAW

The criteria for service connection of tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Service connection may also be established by chronicity and continuity of symptomatology.  See 38 C.F.R. § 3.303(b) (2011).  Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)).  "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496.  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

Service connection is warranted for tinnitus.  The Board acknowledges that the evidence of record does not document evidence of tinnitus during service.  In fact, the first evidence of tinnitus dates in July 2007, when the Veteran reported a current history of tinnitus.  See July 2007 Tricare treatment record.  However, the Veteran is competent to report that he developed tinnitus in 2004 and that he has had tinnitus since 2004, and the Board finds the Veteran's history credible and consistent with the nature of his service, particularly the evidence of in-service exposure to "hazardous noise."  See, e.g., February 1992 reference audiogram.  See also Jandreau, 492 F.3d at 1372 (the layperson may be competent to identify the condition where the condition is simple).  In light of the Veteran's competent history of tinnitus during and since 2004, and giving the benefit of the doubt to the Veteran, the Board finds service connection is warranted. 

VA has a duty to notify and assist claimants for benefits.  The decision grants service connection.  As such, there is no further need to discuss compliance with the duties to notify and assist.  


ORDER

Service connection for tinnitus is granted.  




____________________________________________
KATHLEEN K. GALLGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs