Citation Nr: 1310127	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-18 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for PTSD. 

3. Entitlement to service connection for bilateral hearing loss. 

4. Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from September 1961 to August 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records that have not been reviewed by the RO.  However, there is no prejudice to the Veteran in the Board's adjudication of his claims because the records do not address the claimed disabilities listed above.

The Veteran and his wife testified at a hearing in January 2012 before the undersigned.  A copy of the transcript has been associated with the claims file.  At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO.  38 C.F.R. §§ 20.800, 20.1304(c) (2012).

The Board has phrased the Veteran's claim for PTSD as a single claim for PTSD as opposed to an acquired psychiatric disorder, to include PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  This is because although he was diagnosed with anxiety disorder, the symptoms he experiences from this disorder are also attributed to his PTSD, for which service connection is being granted.  He has not been diagnosed with additional psychiatric disorders.  


FINDINGS OF FACT

1. Evidence associated with the claims file since April 1988 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 

2. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has PTSD that began during active service or is related to an incident of service. 

3. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has bilateral hearing loss that began during active service or is related to an incident of service.

4. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has tinnitus that began during active service or is related to an incident of service.


CONCLUSIONS OF LAW

1. Evidence received since the April 1988 rating decision that denied service connection for PTSD, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 

2. The Veteran's PTSD was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

3. The Veteran's bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).

4. The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As the Board is reopening and granting the Veteran's claim for service connection for PTSD and granting his claims for service connection for bilateral hearing loss and tinnitus, any further development or notification action under the Veterans Claims Assistance Act of 2000 would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010).

New and Material Evidence

Although the RO determined in the August 2008 rating decision that new and material evidence was presented to reopen the claim for service connection for PTSD, this decision is not binding on the Board.  The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate them de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  If the Board finds that no such evidence has been offered, that is where the analysis must end.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  

In April 1988, the RO denied the Veteran's claim for service connection for PTSD on the basis that he was not treated for it during service and instead had "emotional problems" that were congenital or developmental.  He did not submit a notice of disagreement and the rating decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). 

Under 38 U.S.C.A. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim.  King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence.  See 38 U.S.C.A. § 5108.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed."  Savage v. Gober, 10 Vet. App. 488(1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994). 

At the time of the April 1988 denial, the record consisted of his service treatment records (STRs).  Subsequently, VA and private treatment records and the transcript from his January 2012 Board hearing were added to the record.  The Veteran submitted a July 2008 evaluation from Dr. E. T., a private psychologist.  She diagnosed the Veteran with PTSD.  Because her report shows that he has been diagnosed with a psychiatric disorder and not a developmental or congenital disorder, her findings are material.  

Reopening of the Veteran's the claim for service connection for PTSD based on the receipt of new and material evidence is therefore warranted.  Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase 'raises a reasonable possibility of substantiating the claim' in applicable regulation as "enabling rather than precluding reopening").

Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 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.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Service connection may also 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).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

PTSD

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304. 

According to the DSM-IV criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event, and that he/she experience a number of specified current symptoms.  The traumatic event, or stressor, involves experienced, witnessed, or being confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  In addition, the response must involve intense feelings of fear, helplessness, or horror.  The Veteran has been diagnosed with PTSD by a private psychologist.  

VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standard for establishing the in-service stressor required for PTSD claims.  Service connection for PTSD may now be granted if the evidence demonstrates (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA.  Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,852 (July 13, 2010).  Because the evidence of record that medically relates the Veteran's combat stressor to his PTSD was provided by a private psychologist who was not contracted with by VA, a grant of service connection under this liberalizing regulation is not warranted. 

The Veteran's DD Form 215 shows that he received the Combat Action Ribbon and the Bronze Star Medal with a Combat "V."  Further, his service personnel records confirm his stressor, as he received a citation for it when he received his Combat "V."   Accordingly, the Board finds that the Veteran's lay statements alone establish the occurrence of his claimed combat stressor.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(2) (2012).

At issue in this case is whether the Veteran has PTSD that is caused by his confirmed stressor.  There are two medical opinions of record.  In July 2007, Dr. E. T., a private psychologist, found that the Veteran had PTSD caused by his confirmed combat stressor.  In July 2008, a VA examiner found that the Veteran did not have PTSD, but instead had an anxiety disorder.  

In July 2007, Dr. E. T. evaluated the Veteran.  He reported sleep disturbance, sweating, anxiety, flashbacks, and nightmares about his stressor three to four times per week.  He reported intermittent intrusive and involuntary thoughts about his stressor.  He stated that news reports about the wars in Iraq and Afghanistan caused flashbacks and/or intrusive thoughts.  The Veteran also reported feelings of emotional numbness since his return from the Republic of Vietnam.  He felt unable to trust others and had rocky interpersonal relationships.  He avoided talking about his trauma.  Dr. E. T. noted that she reviewed the Veteran's DD 214 and noted that he received a Bronze Star Medal with Combat "V." She diagnosed the Veteran with PTSD that was caused by his confirmed in-service stressor.  She specifically found that his psychiatric symptoms met the DSM-IV criteria for a diagnosis of PTSD.  Dr. E. T.'s evaluation report provides probative evidence in support of the Veteran's claim.  

In July 2008, the Veteran underwent a VA examination.  The examiner reviewed the Veteran's claims file, including a copy of Dr. E. T.'s report, in conjunction with the examination.  The examiner noted a lack of supportive lay statements regarding the Veteran's symptoms.  The examiner also noted that the Veteran's service personnel records included a psychiatric evaluation for two unauthorized absences and "personal problems" including a prior history of alcohol use and being involved with a "bad gang."  The Veteran was found to have a poor attitude toward service.  The examiner noted that this evaluation was made in 1962, prior to the Veteran's deployment to the Republic of Vietnam in 1965.  The examiner found that the Veteran did not have PTSD and specifically disagreed with Dr. E. T.'s evaluation.  

The examiner stated that Dr. E. T. reported using six diagnostic tests but did not provide copies of the Veteran's scores.  The examiner also pointed out that the Veteran reported inconsistent symptoms to Dr. E. T.  Specifically, it was noted that the Veteran informed Dr. E. T. that he was triggered by news reports about Iraq and Afghanistan, but reported to the VA examiner that he did not mind exposure to media involving the current wars.  Further, the examiner found that Dr. E. T.'s report was "vague" and "somewhat exaggerated" because at his VA examination, "[the Veteran] does not present as dysfunction as [Dr. E. T. suggests]."  Lastly, the examiner stated that the Veteran's symptoms did not meet Criterion C of the DSM-IV diagnosis for PTSD because he did not present with persistent avoidance of stimuli associated with his stressor.  With regard to Criterion D, the examiner stated that the Veteran complained of past anger outbursts and episodes of hypervigilance, but that these symptoms were not persistent.  The Veteran was diagnosed with anxiety disorder and alcohol abuse.  The examiner concluded that it was "unclear" as to whether the anxiety disorder pre-existed service or was directly related to combat.  However, the examiner concluded that it was "at least as likely as not his anxiety and alcohol abuse were exacerbated by his combat trauma."  The examiner's opinion provides some probative evidence against the Veteran's claim for PTSD although the examiner does appear to relate, in pertinent part, anxiety to combat trauma.  

At his January 2012 hearing, the Veteran testified about his combat stressor.  His wife testified that she first met him in 1988, and that he initially pushed her away because he thought he was not "good for her."  After they were married, they went to counseling because of the Veteran's PTSD symptoms.  She testified that she was the "strong one" in the relationship who worked to keep them together.  She stated that the Veteran had nightmares and talked in his sleep.  She stated that he awakened at night to check the windows, doors, and locks in their house.  The Veteran's wife is competent to discuss observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  Further, her testimony is credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Her testimony provides evidence that the Veteran has persistent sleep disturbance and displays hypervigilant behavior.  This provides probative evidence in support of the Veteran's claim.  

The Veteran's wife's January 2012 testimony contradicts the findings of the July 2008 VA examiner, who stated that the Veteran's hypervigilance was not persistent.  The hearing testimony, combined with Dr. E. T.'s evaluation, outweighs the opinion of the VA examiner.  In light of the above, service connection is warranted in this case.  Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied; service connection for PTSD is warranted.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).

Bilateral Hearing Loss

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The veteran underwent a VA audiology examination in July 2008.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT

15
30
65
75
LEFT

15
40
65
70

The average puretone threshold was 46 in the right ear and 48 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in each ear.  His level of hearing loss meets the criteria set forth in 38 C.F.R. § 3.385 and is considered a disability for VA purposes.  

The Veteran engaged in combat while serving in the Republic of Vietnam, as shown by his receipt of a Combat Action Ribbon and a Bronze Star Medal with a Combat "V."  He is competent to report a history of noise exposure during service.  Further, his statements regarding exposure to acoustic trauma while working with explosives are credible and consistent with his military service.  See 38 U.S.C.A. § 1154(b) (West 2002).  

At his January 2012 hearing, the Veteran testified that he noticed a decrease in his ability to hear while he was in the military, and that it has been present continuously since that time.  He has been diagnosed with sensorineural hearing loss, which is an organic disease of the nervous system and a chronic condition as set forth in 38 C.F.R. § 3.303(a).  Therefore, the theory of continuity of symptomatology is applicable in this case.  38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 

The Veteran's separation audiology examination indicated normal hearing.  However, the absence of in-service evidence of a hearing disability is not always fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

At his January 2012 hearing, the Veteran testified that as part of his duties, he used explosives to demolish caches of ammunition that were found while on patrol.  Without hearing protection, he was exposed to primary and secondary explosions from demolitions.  Since his period of service, he asserted that he had decreased hearing.  He testified that he did not receive treatment for it from his discharge until 1988, when he met his wife.  His wife testified that when she met the Veteran in 1988, she noticed that he could not hear a person speaking to him unless he could see his or her lips moving.  The Veteran and his wife are competent to discuss observable symptoms of hearing loss.  Layno v. Brown, 6 Vet. App. 465 (1994).  Further, the Veteran's testimony regarding continuity of symptoms is credible, as is his wife's testimony regarding his symptoms.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The hearing testimony provides probative evidence in support of continuity of symptoms.  

The record does not contain evidence of treatment for hearing loss for many years following the Veteran's discharge from service.  However, a lack of contemporaneous medical records cannot be a factor in determining the credibility of a Veteran's statement.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The Veteran underwent a VA examination in July 2008 at which he was diagnosed with bilateral sensorineural hearing loss.  No etiology opinion was provided.  Therefore, the examination was inadequate.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  However, there is no evidence of any other intercurrent cause for the Veteran's current bilateral hearing loss.  The Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted.  It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  In this case, acoustic trauma has been conceded due to the Veteran's participation in combat.  Further, the January 2012 hearing testimony regarding continuity of symptomatology is both competent and credible.  

In light of the above, service connection is warranted in this case based upon continuity of symptomatology.  38 C.F.R. § 3.303(b).  Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance.  Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied; service connection for bilateral hearing loss is warranted.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993).

Tinnitus

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998).  In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran has been diagnosed with tinnitus and as noted above, the Board grants service connection for bilateral hearing loss in this decision.  The first two elements of a secondary service connection claim are satisfied.  Id.  

At his January 2012 hearing, the Veteran testified that he first began to experience ringing in his ears after he fought in a battle for which he received a Bronze Star Medal.  He stated that his unit was attacked by artillery fire and he was hit by a concussion blast, after which he experienced tinnitus that has persisted continuously since then.  In this case, the Veteran is competent to report experiencing ringing in his ears.  Charles v. Principi, 16 Vet. App. 370 (2002).  His testimony regarding his noise exposure and that he experienced tinnitus during service is credible.  38 U.S.C.A. § 1154(b); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  His testimony provides probative evidence in favor of his claim.  

At his July 2008 VA examination, the examiner diagnosed him with constant bilateral tinnitus and concluded that the "most likely etiology of the tinnitus is the sensorineural hearing loss."  The VA examiner's statement provides probative evidence in favor of the Veteran's claim.  There is no evidence of any other intercurrent cause for the Veteran's current tinnitus.  The VA examiner's statement satisfies the nexus element of a secondary service connection claim.  Wallin, 11 Vet. App. at 512.

In light of the above, service connection is warranted for tinnitus on a secondary basis.  Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance.  Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied; service connection for tinnitus is warranted.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993).


ORDER

Service connection for PTSD is granted.  

Service connection for bilateral hearing loss is granted. 

Service connection for tinnitus is granted.  





______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs