Citation Nr: 1326444 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-15 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 2010, a statement of the case (SOC) was issued in May 2011, and a substantive appeal was received in June 2011. The Board notes that a November 2006 Board hearing was conducted by another Veterans Law Judge with regard to several other issues, including hearing loss. At that hearing, the representative noted that they had recently also filed a claim for tinnitus, but acknowledged that it was not before the Board at that time. Although there was some discussion regarding noise exposure during service, the Board finds that there was no substantive testimony regarding tinnitus offered at the November 2006 hearing and that the tinnitus issue was not in appellate status at that time. Therefore, the present appeal may be decided by a Veterans Law Judge other than the one who conducted the November 2006 hearing. See generally 38 C.F.R. § 20.707 (2012). FINDING OF FACT The Veteran's tinnitus is causally related to his active duty service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for tinnitus, which he contends began during active duty. Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially 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). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 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 (1997). In this case, the Veteran contends that he is entitled to service connection for tinnitus as a result of acoustic trauma initially experienced while serving on aboard the USS Terrell County, including in Vietnam. The Veteran recalls that he was exposed to noise trauma while performing his duties as a 1st and 2nd loader when the ship participated in several firing and training missions while stationed off the coast of Vietnam. He recalls further noise trauma during numerous firing missions in Vietnam while serving aboard the USS Jennings County as a gun-mount captain and 1st loader. The Veteran reports that he spoke to a doctor several times about ringing in his ears while service on board the USS Jennings County and was told to give it time and it would go away. He also reports that he spoke to his family physician after service and no solution was found. Alternatively, the Veteran claims that his tinnitus is the result of head trauma (the June 2010 Board decision which granted service connection for a headache disorder found the Veteran's testimony and reports of an in-service injury to the head to be credible.) A March 1969 Navy Enlisted Classification (NEC Code Change Recommendation) shows that the Veteran's graduated from A6A Aircraft Systems Maintenance. His service personnel records show that he served aboard the USS Terrell County and USS Jennings County. Ships logs and ships history (from internet search results) during the Veteran's service show that the ships were involved in counteroffensives in Vietnam. As the Veteran's service personnel records demonstrate that the circumstances of his service involved at least a moderate probability of hazardous noise exposure, his exposure to acoustic trauma is conceded. Service treatment records do not document any complaints of tinnitus and the Veteran's ears were clinically normal on service separation examination in September 1970. The first post-service evidence of the Veteran's claimed tinnitus is many years after service. It is not in dispute that the Veteran has tinnitus as tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). As was noted above, it is also not in dispute that the circumstances of his service involved at least a moderate probability of hazardous noise exposure. What he must still show to establish service connection for his tinnitus is that the current disability is related to his noise exposure in service. Notably, one method of establishing service connection is by showing that the disability for which service connection is sought became manifest during service, and has persisted since. The Veteran alleges that such is the case with his tinnitus, as he first noted it in service, and it has persisted postservice. Because the service records do not show tinnitus, the determinative question in this matter concerns the Veteran's credibility. On close review of the record (and with resolution of reasonable doubt in his favor), the Board finds the Veteran's accounts credible. In his substantive appeal, the Veteran indicated that he did ask a medic about the ringing in his ears and was told to wear ear plugs and it would go away. The Veteran then stated that he still had the ringing in his ears. Resolving remaining (reasonable) doubt in the Veteran's favor, the Board concludes that the evidence is at least in equipoise that the Veteran first noted tinnitus in service (and has had it since). Accordingly, service connection for tinnitus is warranted. See 38 C.F.R. § 3.102. In closing, in view of the fact that the full benefit sought by the Veteran as to his claim for service connection for tinnitus is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations because there is no detriment to the Veteran as a result of any VCAA deficiency. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Board also notes that an October 2009 letter from the RO informed the Veteran of the manner in which disability ratings and effective dates are assigned. Should the Veteran disagree with the RO's actions in this regard in effectuating the grant of service connection, he may always initiate an appeal with a timely notice of disagreement. ORDER Entitlement to service connection for tinnitus is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs