Citation Nr: 1338667 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-26 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to December 1984. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified at a May 2012 hearing sitting at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the Virtual VA and VBMS electronic system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. The Veteran's current tinnitus is etiologically related to exposure to acoustic trauma in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). The condition of tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, 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). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. The Veteran contends that he has tinnitus that is attributable to in-service acoustic trauma. Specifically, he maintains that he was exposed to loud noises from M16 fire, diesel trucks, M60 tanks and artillery during service. Initially, the Board finds that the Veteran has a current disability of tinnitus. During the June 2011 VA examination and the May 2012 Board hearing, he has consistently maintained that he experiences ringing in the ears (i.e., tinnitus). See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus was a type of disorder associated with symptoms capable of lay observation). On the question of in-service injury or disease, the Board finds that the Veteran is shown to have been exposed to acoustic trauma in service. According to the DD Form 214, he served as a heavy vehicle operator. He further explained that his duties involved exposure to M16 fire and M60 tanks and artillery. He is competent to report loud noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Further, the Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS of motor transport have "moderate" exposure to hazardous noise. As a heavy vehicle operator, the Board recognizes that the Veteran experienced extensive noise exposure during service. As such, the Board finds that the Veteran's statements regarding exposure to acoustic trauma are credible as they are consistent and also are supported by the evidence of record and are consistent with the duties and circumstances of his service. See 38 U.S.C.A. § 1154(b) (West 2002). Next, the Board finds that the weight of the competent evidence is at least in equipoise on the question of whether the Veteran's tinnitus is related to exposure to acoustic trauma in service. In the June 2011 VA audiological examination, the VA examiner noted that the Veteran was exposed to acoustic trauma during service, to include diesel truck engines, M60 tanks, artillery and M16s. He denied tinnitus after live firing exercises and noted that hearing protection was provided, but not always worn. Although the VA examiner opined that tinnitus was not related service, a rationale for the opinion was not provided. As such, the Board finds the June 2011 VA medical opinion to be of lesser probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that there is otherwise competent evidence of a relationship between the Veteran's currently-diagnosed tinnitus and active service, namely, persistent symptoms of tinnitus since service separation. During the May 2012 Board hearing, he testified that the ringing in his ears began in the 1980s and progressively worsened with time. He has consistently reported these symptoms throughout the appeal period, to include his statements at the June 2011 VA examination. Further, during the May 2012 Board hearing, the Veteran essentially explained that he did not file a claim for service connection for tinnitus because he did not know that there was a diagnosis for what he was experiencing (i.e., ringing in the ears) until other veterans at work told him that he may be experiencing tinnitus. For these reasons, the Board finds that the Veteran's statements are both credible and competent to establish a relationship between current tinnitus and the in-service noise exposure. Upon review of all the evidence of record, both lay and medical, the Board finds that there is essentially a balance of positive and negative evidence as to the nexus between tinnitus and the in-service noise exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Resolving doubt in the Veteran's favor, service connection for tinnitus is warranted. The claim of service connection for tinnitus has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection for tinnitus), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for tinnitus is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs