Citation Nr: 1315528 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 13-01 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to March 1946 and from July 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the benefits sought on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Tinnitus is due to excessive noise exposure during the Veteran's period of active military service; the Board finds the Veteran's statements regarding tinnitus symptoms following service to be credible. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran in light of the award of service connection in the instant decision. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which contains VA treatment records dated between 2001 and 2012 reviewed by the RO in the November 2012 statement of the case. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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). At the outset, the Board notes that the Veteran's service treatment records were apparently destroyed in a fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973 and only limited copies were associated with the claims file. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran is claiming entitlement to service connection for tinnitus. Specifically, he contends that it is the result of noise exposure, to include noise from the engine room, while performing duties as a machinist mate. Considering the evidence of record, summarized in pertinent part below, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. 38 C.F.R. § 3.102. In this regard, the Veteran served on active duty from September 1943 to March 1946 and from July 1951 to October 1952. The DD-214 from his first period of service shows that the Veteran performed duties as Motor Machinist's Mate First Class. A list of Navy enlisted occupational specialties contained in the claims folder, generated by the RO, reveals that noise exposure was "highly probable" for a machinist mate. Service connection has been awarded for hearing loss due to the same claim of acoustic trauma during military service. Post-service, the Veteran reported bilateral tinnitus occurring approximately once a month during a February 2012 VA audiological consult. He informed the treatment provider that he had military noise exposure. The Board is cognizant that the Veteran denied tinnitus during the August 2012 VA examination; however, the Veteran explained in his substantive appeal that he never realized exactly what tinnitus was until recently. He further explained that during the examination he was not experiencing tinnitus symptoms, but that "for as long as [he could] remember," tinnitus came and went. He also indicated that because he had lived with it for so long (since service) that he had learned to ignore the symptoms, but that it did not mean tinnitus was not recurrent, simply not present on the day of examination. The Board finds that the probative value of the negative opinion diminishes in light of the cumulative evidence of record, i.e. the Veteran's credible assertions that he had noise exposure in service (which was already conceded by VA) and no significant post-service recreational or occupational noise exposure found in the record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). Further, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). As noise exposure is conceded based on the Veteran's duty assignments during service, and VA has awarded service connection for hearing loss based on the same claim of acoustic trauma during military service, and the Veteran has current tinnitus, the Board finds that the evidence is at least in equipoise in showing that the Veteran's tinnitus is related to events of his active service. Resolving any doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs