Citation Nr: 1329246	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  12-11 243A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Tenna Petro, Agent


ATTORNEY FOR THE BOARD

Aaron Bill, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from May 1982 to May 1986.

This appeal comes to the Board of Veterans' Appeals (Board) 
from a May 2011 rating decision.  The Board has not only 
reviewed the Veteran's physical claims file but also his 
file on the "Virtual VA" system to ensure a total review of 
the evidence.


FINDINGS OF FACT

1.  The Veteran was exposed to loud noise while in service.

2.  The Veteran has credibly reported the onset of tinnitus 
in service and he has a current diagnosis of tinnitus.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been 
met.  38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 1153, 5107, 
7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 
3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on the 
Department of Veterans Affairs to provide claimants with 
notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 
5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper 
VCAA notice must inform the claimant of any information and 
evidence not of record that: (1) is necessary to 
substantiate the claim; (2) VA will seek to provide; and (3) 
the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b) (1) (2012).  In Pelegrini v. Principi, 
18 Vet. App. 112 (2004), the United States Court of Appeals 
for Veterans Claims (Court) held that a VCAA notice, as 
required by 38 U.S.C.A. § 5103(a), must be provided to a 
claimant before the initial unfavorable decision on the 
claim for VA benefits.  In the decision below, the Board 
grants service connection for tinnitus.  As such action 
represents a complete grant of the benefit sought on appeal, 
no discussion of VA's duty to notify and to assist is 
necessary as to those issues.

Service Connection

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 
38 U.S.C.A. § 7104(a).   In this case, the Board has 
thoroughly reviewed all the evidence in the Veteran's claims 
folder.  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 a 
veteran or on his or her behalf.  See Gonzales v. West, 218 
F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review 
the entire record, but does not have to discuss each piece 
of evidence).  

When there is an approximate balance in the evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  
38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  The Court held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  See 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  The Court 
has also stated, "It is clear that to deny a claim on its 
merits, the evidence must preponderate against the claim."  
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert.

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military, naval, or air service. 38 U.S.C.A. § 1131 ; 38 
C.F.R. § 3.303(a).  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).  Tinnitus is not a chronic condition under 38 
C.F.R. § 3.303(b).

As a general matter, service connection for a disability 
requires evidence of:  (1) the existence of a current 
disability; (2) the existence of the disease or injury in 
service, and; (3) a relationship or nexus between the 
current disability and any injury or disease during service.  
Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see 
also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing 
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 
604 (Fed. Cir. 1996).  The condition at issue, tinnitus, is 
not "chronic diseases" listed under 38 C.F.R.  § 3.309(a); 
therefore, the presumptive provisions of 38 C.F.R. § 
3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 
(Fed. Cir. 2013).

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, 
supra, 1 Vet. App. at 57.

Lay assertions may serve to support a claim for service 
connection by supporting the occurrence of lay-observable 
events or the presence of disability or symptoms of 
disability subject to lay observation.  See 38 U.S.C.A. § 
1153(a); 38 C.F.R. 
§ 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 
(Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 
1336 (Fed. Cir. 2006) (addressing lay evidence as 
potentially competent to support presence of disability even 
where not corroborated by contemporaneous medical evidence).  
In certain circumstances, however, lay evidence may be 
sufficient to establish a medical diagnosis or nexus.  See 
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

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").

The Veteran asserts entitlement to tinnitus related to noise 
exposure during service.  The Veteran contends that his 
current tinnitus disability is related to his service, and 
that his tinnitus started in service based on exposure to 
excessive noise including diesel engines and boiler rooms 
aboard the ship upon which he was stationed.

The Board also acknowledges that the March 2011 VA 
audiological examiner stated that the Veteran reported 
having had tinnitus for approximately 20 years, though he 
could not recall the exact onset, stating it likely started 
a couple of years after separation from service.  The 
examiner concluded that it was less likely than not that 
tinnitus was caused by acoustic trauma form diesel engines 
and boilers while service in the Navy.  

The Board finds that the weight of the probative and 
credible evidence supports the claim and service connection 
for tinnitus is warranted.  The Board finds that the Veteran 
was exposed to noise in service.  In the Veteran's notice of 
disagreement (NOD), he states he reported to the VA examiner 
that his tinnitus began during service due to the previously 
mentioned engine and boiler noise.  The VA examiner's 
opinion was based on the absence of documented tinnitus at 
the end of the deployment and the onset of tinnitus after 
separation from service.  The Veteran consistently and 
credibly contended that he experienced in-service noise 
exposure from diesel engines and boilers and that he had 
tinnitus in service and since service.  See Layno v. Brown, 
6 Vet. App. 465 (1994).  

The Board finds that the examiner's negative opinion 
regarding tinnitus was erroneously based on the VA examiner 
documenting that the Veteran stated he did not have tinnitus 
while in service.  However, as mentioned above, the Veteran 
has consistently reported that he had tinnitus during 
service due to noise exposure and has had tinnitus since 
separation from service.  Therefore the VA opinion has no 
probative value.  Based on the Veteran's credible testimony 
that he had tinnitus in service and ever since service, the 
evidence support a finding that tinnitus was incurred in 
service.  Accordingly, service connection is warranted for 
tinnitus.


ORDER

Entitlement to service connection for tinnitus is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs