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