Citation Nr: 0810315 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-29 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (the RO). Procedural History The veteran served on active duty from March 1962 until April 1965. In June 2004, the RO received the veteran's claim of entitlement to service connection for tinnitus. The October 2004 rating decision denied the veteran's claim. The veteran disagreed with the October 2004 rating decision and initiated this appeal. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in August 2005. Issues not on appeal Also in the October 2004 rating decision, the RO denied the veteran's claim of entitlement to service connection for left ear hearing loss and granted entitlement to service connection for right ear hearing loss, assigning a noncompensable evaluation. The veteran has not disagreed with those decisions. Therefore, the issues are not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDING OF FACT The competent medical evidence of record is against a finding that the veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Duty to notify The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in a letter dated July 23, 2004. In this letter, the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain all evidence kept by the VA and any other Federal agency. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The VCAA letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide an adequate description of the records as well as authorization for records not held by the Federal government. Additionally, the letters specifically informed the veteran of the criteria of a successful claim of entitlement to service connection. The July 2004 letter expressly notified the veteran that he could submit or describe additional evidence in support of his claim and specifically informed the veteran "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." See the July 2004 letter, page 2. This complies with the requirements of 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1), veteran status, is not at issue. The veteran's claims have been denied based on a lack evidence as to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those two crucial elements. Moreover, regarding elements (4) and (5), degree of disability and effective date, these are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. The Board additionally observes that the veteran appears to be fully conversant with what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained. The veteran's service medical records have been obtained and in September 2004 the veteran was afforded a VA Compensation and Pension examination. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2007). Accordingly, the Board will proceed to a decision on the merits. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2007). Analysis In the interest of clarity, the Board will employ a Hickson analysis. Concerning element (1), current disability, a September 2004 VA audiology examination establishes that the veteran has been diagnosed with tinnitus. Turning to element (2), in-service incurrence of disease or injury, the Board will address disease and injury in turn. Regarding in-service incurrence of disease, the veteran's complete service medical records have been obtained. The records are pertinently negative for any complaint consistent with tinnitus or any hearing problem. Therefore, Hickson element (2) is not satisfied on the basis of in-service incurrence of disease. Moving to in-service incurrence of injury, it is undisputed that the veteran suffered acoustic trauma during service. Accordingly, in-service incurrence of injury is shown and Hickson element (2) is satisfied on that basis. As for crucial Hickson element (3), medical nexus, the competent medical evidence of record is limited to the September 2004 VA examination. The examination was conducted by a duly credentialed audiologist, who reviewed the veteran's complete record. Based upon the veteran's report of noise exposure in service, his current hearing loss pattern, his report of current symptoms and the service records, the audiologist concluded that it was less likely as not that the veteran's reports of tinnitus were related to the significant in-service noise exposure. The veteran contends that the medical opinion is flawed, asserting that the examiner misunderstood his reported date for the onset of symptoms; he has asserted that his onset of symptoms was at the time of service, not three years ago. However, it is clear that the examiner took into account the veteran's statement as to date of onset on tinnitus as well as the objective evidence of record, which does not indicate any complaints of tinnitus in service or for many decades thereafter, in reaching his conclusion. The record shows that he first time the veteran raised the claim of tinnitus was in June 2004, nearly 40 years after he left service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. Accordingly, the September 2004 medical opinion appears congruent with the evidence contained in the file. There is no indication that the September 2004 VA examination was in any way inadequate or incomplete. The board rejects the veteran's contention. Further, there is no competent medical evidence to the contrary. To the extent that the veteran himself asserts that his current tinnitus is related to service, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis, date of onset or cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 491, 494- 5 (1992) see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran are not competent medical evidence and do not serve to establish medical nexus. See Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus]. The veteran has been accorded ample opportunity to present to VA competent medical nexus in support of his claim. He has not done so. See 38 U.S.C.A. § 5107 (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The veteran in essence contends that he has had symptoms of tinnitus continually since service. The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed in the law and regulations section above, relating to chronicity and continuity of symptomatology. The Board acknowledges that in the veteran's Notice of Disagreement and in his August 2005 substantive appeal he asserts that his tinnitus had its onset during service. The Board has taken the veteran's own statements into consideration, but in view of the entire record, the Board finds the negative service medical records to be more probative. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact]. As has been discussed above, there is no medical evidence of tinnitus in service or for several decades after service. Nor is there any medical evidence which suggests a nexus between the veteran's currently diagnosed tinnitus and his military service; the only nexus opinion of record is not favorable to the veteran's claim. Supporting medical evidence is required. See Voerth, supra, 13 Vet. App. 117, 120-1 [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, for the reasons and bases set out above, Hickson element (3) is not met. The claim fails on that basis, and the benefits sought on appeal are therefore denied. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs