Citation Nr: 0810701 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-08 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDING OF FACT The veteran's current tinnitus began many years after service and is not related to his military service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the instant case, the RO's November 2004 letter advised the veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Vazquez v. Peake, 22 Vet. App. 37 (2008); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). A subsequent letter in March 2006, which was followed by a supplemental statement of the case in November 2007, notified the veteran of effective dates and the assignment of disability evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, there is no prejudice to the veteran as to these considerations because the claim for entitlement to service connection for tinnitus has been denied. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained all of the veteran's service medical records, as well as his identified VA medical treatment records and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran has also been provided with a VA examination addressing the etiology of his tinnitus. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran contends that he was exposed to acoustic trauma in service, and that he currently has tinnitus as a result. The veteran's Report of Separation, Form DD 214, revealed that he served on active duty in the Army from February 1966 to February 1968. The report listed his inservice specialty as airframe repairman. It also indicated that he had been awarded a sharpshooter badge. Although the service medical records are negative for any evidence of tinnitus, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In the instant case, the evidence shows that the veteran currently has tinnitus. Nevertheless, this condition is not shown to have been diagnosed until 2004, and there is no medical evidence that the veteran's current tinnitus is related to his military service. See Hickson, 12 Vet. App. at 253. The veteran contends that his current tinnitus is related to the acoustic trauma he experienced in service. Although the veteran's statements are competent to report events and observations, such as being exposed to noise in service, his statements are not competent evidence to provide an opinion as to the etiology of his current disorder. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because he is not a physician, the veteran is not competent to make a determination that his current tinnitus is the result of any injury to his ears decades ago. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the fact remains that there is no competent evidence on file linking the veteran's current tinnitus to service or to any incident of service, despite his assertions that such a causal relationship exists. This lack of cognizable evidence is particularly dispositive as the first medical evidence of record noting any complaints of tinnitus is dated in 2004, over thirty-six years after his period of service had ended. See Mense v. Derwinski, 1 Vet. App. 354 (1991). Moreover, the VA examiner in June 2005 opined that it was "not as likely as not" that the veteran's tinnitus resulted from his military service. As there is no competent evidence which provides the required nexus between military service and the issue on appeal, service connection for tinnitus is not warranted. See Caluza v. Brown, 7 Vet. App. 498 (1995). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as there is no evidence of tinnitus in service, and no competent evidence which provides the required nexus between military service and tinnitus, the preponderance of the evidence is against the veteran's claim for service connection for tinnitus, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs