Citation Nr: 21062822 Decision Date: 10/08/21 Archive Date: 10/12/21 DOCKET NO. 17-41 815 DATE: October 8, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. In October 2021, a Board hearing was held before the undersigned Veterans Law Judge. The Board notes that the appeal seeking entitlement to reimbursement of medical expenses is also before the Board. However, that claim will be addressed in a separate decision. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The Board must also 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). 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). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for tinnitus and asserts that his tinnitus began as a result of being exposed to aircraft, gunfire, and explosions during his service in Vietnam. The Veteran's military personnel records reflect that he had service in the Republic of Vietnam. Therefore, the Board acknowledges the Veteran was exposed to hazardous noise in service. It is also not in dispute that the Veteran has tinnitus, as the competent medical evidence of record documents a current diagnosis for recurrent tinnitus. Accordingly, what must still be shown to establish service connection for tinnitus is a nexus to service. After a thorough review of the record, the Board finds that the competent evidence of record reasonably supports the Veteran's claim that he has had tinnitus since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In that regard, the Board emphasizes that the Veteran has largely been consistent in asserting that his tinnitus began while he was in service and continued since. The Veteran's reports of tinnitus since service are also supported by the December 2016 VA examiner's findings that the Veteran was exposed to noise levels adequate enough to cause changes to his auditory system in service. The December 2016 VA examiner did provide a negative nexus opinion regarding the Veteran's tinnitus. However, the examiner's opinion was based primarily on a finding that the Veteran's tinnitus had its onset two years earlier and there were no complaints of tinnitus in service. The examiner explained that tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following noise exposure. After this examination the Veteran clarified that he reported to the VA examiner that his tinnitus began in Vietnam, but he did not seek medical treatment until more recently because he did not trust the government and doctors. Given the Veteran's competent and credible reports regarding the onset of his tinnitus and the fact that the examiner did not otherwise reconcile whether the Veteran's tinnitus could have also developed as a result of "changes to his auditory system in service," the Board affords the December 2016 VA examiner's opinion regarding tinnitus little to no probative value. In sum, the Board finds that the evidence is at least in equipoise as to whether the requisite elements of service connection for tinnitus are met. The Veteran has a current disability of tinnitus, he sustained noise trauma during active service, and there is competent and credible evidence establishing a link between the Veteran's current tinnitus and active service. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.