Citation Nr: 0810914	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  04-12 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

M. Scott Walker, Associate Counsel







INTRODUCTION

The veteran served on active duty from November 1965 to 
November 1967.

This matter comes on appeal before the Board of Veterans' 
Appeals (Board) from a July 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in St. 
Louis, Missouri (RO) which denied service connection for 
tinnitus.

The veteran requested a RO hearing in March 2004, but 
withdrew this request in April 2004.

This matter was remanded by the Board in August 2006 so as to 
provide the veteran with updated notification in line with 
the United States Court of Appeals for Veterans Claims' 
(Court) decision in the case of Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006), as well as to provide a VA 
audiological examination.  The Board notes that both tasks 
were completed, and the issue of service connection for 
tinnitus may be decided at this time.


FINDING OF FACT

Tinnitus did not have its onset in or is otherwise 
attributable to service.  


CONCLUSION OF LAW

Tinnitus was neither incurred in nor aggravated by active 
service.  38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2006); 
38 C.F.R. §§ 3.303, 3.304 (2007).






REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board notes that regulations 
enacted under the Veterans Claims Assistance Act of 2000 
(VCAA) require VA to notify claimants and their 
representatives of any information that is necessary to 
substantiate a claim for benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159(b), 3.326(a).  

The Court has held that this notice must be provided to a 
claimant prior to an initial, unfavorable decision on a claim 
for VA benefits by any VA regional office (RO).  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004) [Pelegrini II].  
Regulations also dictate that VA has a duty to assist 
claimants, essentially providing that VA will make reasonable 
efforts to assist a claimant in obtaining evidence necessary 
to substantiate a claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(c).  

In the present case, the issue on appeal arises from a claim 
for service connection for tinnitus.  The Board notes that 
the veteran's claim was received in February 2003.  In March 
2003, prior to its adjudication of this claim, the RO 
provided notice to the claimant regarding the VA's duty to 
notify and to assist.  The claimant was aware that it was 
ultimately the claimant's responsibility to give VA any 
evidence pertaining to the claim.  Specifically, the VCAA 
notification instructed the claimant to provide any relevant 
evidence in the claimant's possession.  See Pelegrini II.  In 
particular, the VCAA notification: (1) informed the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) informed the 
claimant about the information and evidence that VA will seek 
to provide; (3) informed the claimant about the information 
and evidence that the claimant is expected to provide; and 
(4) requested that the claimant provide any evidence in his 
possession that pertains to the claims.  See Pelegrini II.  
Thus, the Board finds that the content and timing of the 
March 2003 notice comports with the requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

With respect to the duty to assist, the Board notes that the 
veteran has undergone VA examinations in conjunction with his 
claim for service connection.  38 C.F.R. § 3.159(c)(4).  
There is no objective evidence indicating that there has been 
a material change in the veteran's condition since the 
claimant was last examined.  38 C.F.R. § 3.327(a).  The duty 
to assist does not require that a claim be remanded solely 
because of the passage of time since an otherwise adequate VA 
examination was conducted.  See VAOPGCPREC 11-95.  The VA 
examination reports are thorough, the examinations in this 
case are adequate upon which to base a decision, and the 
records satisfy 38 C.F.R. § 3.326.

Further, the claimant's service medical records and pertinent 
post-service medical records have been obtained, to the 
extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  
There is no indication in the record that any additional 
evidence, relevant to the issue decided herein, is available 
and not part of the claims file.

Additional efforts to assist the veteran in accordance with 
the VCAA would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements in the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the veteran); Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994) (remands which would only result 
in unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran are to be avoided).  

In summary, the evidence does not show, nor does the veteran 
contend, that any notification deficiencies have resulted in 
prejudice.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006) (holding that due process concerns with respect to VCAA 
notice must be pled with specificity).  Therefore, the Board 
finds that it would not be prejudicial to the veteran to 
render a decision at this time.




Service Connection

The U.S. Court of Appeals for Veterans Claims (Court) held 
that, in order to prevail on the issue of service connection 
on the merits, there must be medical evidence of (1) 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 
present disease or injury.  Hickson v. West, 12 Vet. App. 
247, 253 (1999).

A claim of service connection for a disability must be 
accompanied by medical evidence establishing that the 
claimant currently has a claimed disability.  Absent proof of 
a present disability, there can be no valid claim.  See, 
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 
U.S.C. § 1110 requires current symptomatology at the time the 
claim is filed in order for a veteran to be entitled to 
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997) (38 U.S.C. § 1131 requires the existence of a present 
disability for VA compensation purposes).

In order to establish service connection for a claimed 
disability, the facts must demonstrate that a disease or 
injury resulting in current disability was incurred in active 
military service or, if pre-existing active service, was 
aggravated therein.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§§ 3.303, 3.304.  

Service connection may also be granted for any disease 
diagnosed after discharge when all of the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).  In addition, 
certain chronic diseases may be presumed to have been 
incurred or aggravated during service if they become 
disabling to a compensable degree within one year of 
separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 
C.F.R. §§ 3.307, 3.309.

That an injury occurred in service alone is not enough; there 
must be chronic disability resulting from that injury.  If 
there is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity.  
38 C.F.R. § 3.303(b).

In this case, although the veteran has established that he 
currently has tinnitus, the evidence of record does not show 
that he had tinnitus during his period of active duty or that 
his current disability is related to his military service.  
The veteran's service records are silent as to complaints, 
treatment, or diagnosis of tinnitus.  The veteran's September 
1967 separation examination noted that his ears were 
"Normal."  On the veteran's Report of Medical History, also 
dated September 1967, he checked "No" to hearing loss and 
did not note any auditory anomaly.

The veteran was first afforded a VA audiological examination 
in May 2003.  At that time, the veteran stated that he first 
noticed his tinnitus around the year 2000, and that it had 
become increasingly more intense.  Because there was no 
evidence of tinnitus at discharge, and because the veteran 
noted that his tinnitus symptoms began decades following his 
period of active service, the examiner opined that it was 
unlikely that the veteran's tinnitus was the result of his 
military service.  

The veteran was afforded a second VA audiological examination 
in April 2007.  In direct contrast to his previous VA 
examination, the veteran reported constant, bilateral 
tinnitus since 1967.  The veteran attributed his onset of 
tinnitus to noise exposure while in active service.  The 
examiner concluded that, "based upon the audiometric data in 
the C-file which indicated hearing WNL at the time of exit 
from the service and no complaint of tinnitus found in the 
service medical records, it is as likely as not that his 
tinnitus is due to military noise exposure."

Because the April 2007 VA examiner's opinion was 
contradictory in nature, the RO solicited a clarification 
opinion from the same examiner in order to confirm his 
previous diagnosis.  In an August 2007 clarification opinion, 
the April 2007 VA examiner stated that her prior diagnosis 
was most likely a template error, and that the opinion should 
have read, "Based upon the audiometric data in the C-file 
which indicated hearing WNL at the time of exit from the 
service and no complaint of tinnitus found in the service 
medical records, it is not likely that his tinnitus is due to 
military noise exposure."

As both VA medical examinations have provided negative 
opinions as to an etiological nexus between the veteran's 
current diagnosis of tinnitus and his last period of active 
service, the only supporting evidence of a causal link within 
the record comes from the veteran himself.  However, the 
Board notes that the veteran is not competent to make this 
causal link or to state the etiology of his disorder.  The 
veteran can attest to factual matters of which he had first-
hand knowledge, e.g., experiencing pain in service, reporting 
to sick call, being placed on limited duty, and undergoing 
physical therapy.  See Washington v. Nicholson, 19 Vet. App. 
362, 368 (2005).  Therefore, he is competent to report, as he 
has, that he experienced tinnitus for the first time in 1967.  
However, the veteran as a lay person has not been shown to be 
capable of making medical conclusions, thus, his statements 
regarding causation are not competent.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 495 (1992).  Thus, while the 
veteran is competent to report what comes to him through his 
senses, he does not have medical expertise.  See Layno v. 
Brown, 6 Vet. App. 465 (1994).  Therefore, he cannot provide 
a competent opinion regarding the diagnosis and causation of 
his tinnitus.

Moreover, the claims file shows no documented complaints of 
or treatment for tinnitus until May 2003, over 26 years 
following separation from service.  In making its decision, 
the Board notes that the lapse of time between service 
separation and the earliest documentation of current 
disability is a factor for consideration in deciding a 
service connection claim.  See Maxson v. Gober, 230 F.3d 
1330, 1333 (Fed. Cir. 2000).  Therefore, in the absence of 
demonstration of continuity of symptomatology, the lack of 
evidence of tinnitus in service, and two VA audiological 
opinions stating that a medical nexus to service is unlikely, 
the Board finds that the initial report of tinnitus several 
years after the veteran's discharge from service to be too 
remote to be reasonably related to such military service.  

The Board recognizes that the veteran is in receipt of the 
Combat Infantryman Badge and served in combat.  Where a 
combat wartime veteran alleges he suffers disability due to 
an injury incurred in service, 38 U.S.C.A. § 1154(b) must be 
considered.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); 
Gregory v. Brown, 8 Vet. App. 563 (1996); Caluza v. Brown, 7 
Vet. App. 498 (1995).  The analysis required by 38 U.S.C.A. § 
1154(b), however, applies only as to whether an injury or 
disease was incurred or aggravated in service.  It does not 
apply to the questions of whether there is a current 
disability or a nexus connecting the disability to service.  
See Caluza; Collette, supra.  38 C.F.R. § 1154(b) does not 
obviate the requirement that a veteran submit medical 
evidence of a current disability and of a causal relationship 
between his current disability and his military service.  See 
Wade v. West, 11 Vet. App. 302 (1999).

The Board accepts that the veteran had inservice noise 
exposure.  The VA examiner considered that the veteran had 
inservice noise exposure.  However, the VA examiner did not 
attribute current tinnitus to service despite that history.  
Thus, even considering 38 U.S.C.A. § 1154(b), there is no 
competent medical evidence of a causal relationship between 
the veteran's current disability and his military service.  
Neither the Board nor the veteran is competent to supplement 
the record with unsubstantiated medical conclusions.  Colvin 
v. Derwinski, 1 Vet. App. 171, 175 (1991).  Conversely, 
health professionals are experts and are presumed to know the 
requirements applicable to their practice and to have taken 
them into account in providing a diagnosis.  Cohen v. Brown, 
10 Vet. App. 128 (1997).  

Based on the foregoing, a grant of service connection for 
tinnitus is not warranted.  Accordingly, entitlement to 
service connection for tinnitus is denied.


ORDER

Entitlement to service connection for tinnitus is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs