Citation Nr: 0811407	
Decision Date: 04/07/08    Archive Date: 04/23/08

DOCKET NO.  05-31 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. A. Booher, Counsel





INTRODUCTION

The veteran had active service from October 1962 to June 1971 
during which time he had two tours of Vietnam.  He was born 
in 1945.

This appeal to the Board of Veterans' Appeals (Board) is from 
actions taken by the above Department of Veterans Affairs 
(VA) Regional Office (RO).

The veteran asked for and was scheduled for a Travel Board 
hearing in February 2008, for which he failed to appear.

Service connection is in effect for bilateral defective 
hearing, for which a 10 percent rating is assigned.  A 
permanent and total rating for non-service-connected 
disability pension purposes is also in effect.



FINDING OF FACT

The competent and probative evidence of record preponderates 
against a finding that the veteran has tinnitus which is 
either of service origin or is proximately due to or the 
result of his service-connected hearing loss, on either a 
causation or aggravation basis.



CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by service, and is 
not due to, the result of, or aggravated by service-connected 
hearing loss.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 
2002 &West Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.310 
(2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 
38 C.F.R. § 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant of the information and evidence not of record that 
is necessary to substantiate the claim; to indicate which 
information and evidence VA will obtain and which information 
and evidence the claimant is expected to provide; and to 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The U.S. Court of 
Appeals for Veterans Claims has held that VCAA notice should 
be provided to a claimant before the initial RO decision on a 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
However, if VCAA notice is provided after the initial 
decision, such a timing error can be cured by subsequent 
readjudication of the claim, as in a Statement of the Case 
(SOC) or Supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 
Vet. App. 537, 543 (2006).  The VCAA notice requirements 
apply to all elements of a claim.  Dingess v. Nicholson, 19 
Vet. App. 473, 484 (2006).

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed prejudicial.  VA then bears the 
burden of rebutting the presumption, by showing that the 
essential fairness of the adjudication has not been affected 
because, for example, actual knowledge by the claimant cured 
the notice defect, a reasonable person would have understood 
what was needed, or the benefits sought cannot be granted as 
a matter of law.  Sanders v. Nicholson, 487 F.3d 861 (Fed. 
Cir. 2007); petition for cert. filed (U.S. March 21, 2008) 
(No. 07-1209).

The veteran filed his claim for service connection in May 
2004; a letter was sent to him in June 2004 relating to 
requirements to support his claim.  Extensive records were 
obtained from facilities wherein he had been seen, as stated 
by him.  A rating action in September 2004 denied the claim.  
Additional records were obtained including a VA examination 
and opinion.  A rating action in July 2005 granted service 
connection for his defective hearing and continued to deny 
the tinnitus claim.  He filed a Notice of Disagreement (NOD) 
on the tinnitus issue in August 2005.  Throughout, extensive 
development was undertaken and correspondence sent to the 
veteran with regard the requirements to support his claims 
and related matters.  

The VARO sent him explanatory letters, and an SOC and SSOCs 
were issued and additional correspondence was sent to the 
veteran, including a letter containing information mandated 
by Dingess, in March 2006.  He timely filed a Substantive 
Appeal on a VA Form 9 in September 2005.  In the aggregate, 
the Board finds that the RO has satisfied the duty to notify 
and assist under the VCAA.

The Board finds that the content of letters and other 
communications complied with the requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to 
notify.  Any other defect with respect to timing was harmless 
error.  See Mayfield, supra.  He was advised of his 
opportunities to submit additional evidence after which 
additional data was obtained and entered into the record.  
The Board finds that 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.  He has submitted additional 
data, and has indicated that he has no other information or 
evidence to substantiate the claim.

It appears that all obtainable evidence identified by the 
veteran relative to his claim has been obtained and 
associated with the claims file, and that neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, which would need to be obtained for a 
fair disposition of the current appeal.  Neither has he 
suggested in any way that there is any prejudice due to a 
lack of proper VA notice or assistance.  He has asked for 
another VA examination, which the Board does not find is 
necessary, for reasons which will be discussed below.

In the aggregate, the veteran has demonstrated actual 
knowledge of and have acted on the information and evidence 
necessary to substantiate the pending claim.  See, e.g., 
Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was 
convinced that appellant and representative had demonstrated 
actual knowledge of the information and evidence necessary to 
establish the claim).  Any presumption of error as to VCAA 
notice has been rebutted in this case.  See Sanders, supra.  

Accordingly, we find that VA has satisfied its duty to assist 
the veteran in apprising him as to the evidence needed, and 
in obtaining evidence pertinent to his claim under the VCAA.  
No useful purpose would be served in remanding this matter 
for yet more development on this issue.  Such a remand would 
result in unnecessarily imposing additional burdens on VA, 
with no additional benefit flowing to the veteran.  The Court 
has held that such remands are to be avoided.  Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994). 

II.  Applicable Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007).  

With chronic disease shown as such in service so as to permit 
a finding of service connection, subsequent manifestations of 
the same chronic disease at any later date, however remote, 
are service connected, unless clearly attributable to 
intercurrent causes.  When the fact of chronicity in service 
is not adequately supported, then a showing of continuity of 
symptomatology after discharge is required to support a claim 
of service connection.  38 C.F.R. § 3.303(b).  Service 
connection may be granted for any disease diagnosed after 
discharge, when all 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 diseases, such as organic diseases of 
the nervous system, (e.g., tinnitus), may be subject to 
service connection based on presumed incurrence in service if 
manifested to a compensable degree within one year subsequent 
to service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 
38 C.F.R. §§ 3.307, 3.309.

Service connection may also be granted for disability which 
is proximately due to or the result of service-connected 
disability.  38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. 
App. 439 (1995) (en banc).  When service connection is thus 
established for a secondary disorder, the secondary condition 
is considered a part of the original disability.  Any 
increase in severity of a non-service-connected disorder 
which is proximately due to or the result of a service-
connected disability, and not due to the natural progress of 
the non-service-connected condition, will be service 
connected.  38 C.F.R. § 3.310(b).  The Board notes that 
38 C.F.R. § 3.310, above, the regulation which governs claims 
for secondary service connection, was amended during the 
pendency of this claim and appeal.  The intended effect of 
this amendment is to conform VA regulations to the Allen 
decision, supra.  71 Fed. Reg. 52,744 (Sept. 7, 2006) (now 
codified at 38 C.F.R. § 3.310(b)(2007)).  Since VA has been 
complying with Allen since 1995, the regulatory amendment 
effects no new liberalization or restriction in the present 
appeal.

The Court has held that, in order to prevail on the issue of 
service connection, there must be (1) medical evidence of a 
current disability; (2) medical, or in certain circumstances, 
lay evidence of incurrence or aggravation of a disease or 
injury in service; and (3) medical evidence of a nexus 
between the claimed in-service injury or disease and the 
current disability.  Hickson v. West, 12 Vet. App. 247, 252 
(1999).

The Board is not competent to supplement the record with its 
own unsubstantiated medical conclusions, but must, where 
necessary, refer to competent medical authority.  Colvin v. 
Derwinski, 1 Vet. App. 171, 175 (1991).  

The determination as to whether the requirements for service 
connection are met is based on an analysis of all the 
evidence of record and the evaluation of its credibility and 
probative value.  38 U.S.C.A. § 7104(a) (West 2002); Baldwin 
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  Once 
the evidence is assembled, the Board is responsible for 
determining whether the preponderance of the evidence is 
against the claim.  If so, the claim is denied; if the 
evidence is in support of the claim or is in equal balance, 
the claim is allowed.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 
Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001).  
If the Board determines that the preponderance of the 
evidence is against the claim, it has necessarily found that 
the evidence is not in approximate balance, and the benefit 
of the doubt rule is not applicable.  Ortiz, 274 F.3d at 
1365.

Similarly, it is well established that while someone who is a 
layperson is not considered capable of opining on matters 
requiring medical knowledge, they are permitted to provide 
observations.  See Moray v. Brown, 5 Vet. App. 211 (1993); 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Medical 
evidence is generally required to establish a medical 
diagnosis or to address questions of medical causation; lay 
assertions of medical status do not constitute competent 
medical evidence for these purposes.  Espiritu, supra.  
However, as noted above, lay statements may serve to support 
a claim for service connection by supporting the occurrence 
of lay-observable events or the presence of disability or 
symptoms of disability subject to lay observation.  38 
U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. 
Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing 
lay evidence as potentially competent to support presence of 
disability even where not corroborated by contemporaneous 
medical evidence).  

However, the Court has specifically held that tinnitus is a 
condition which is capable of lay observation.  See Charles 
v. Principi, 16 Vet. App. 370, 374 (2002); Washington v. 
Nicholson, 19 Vet. App. 362, 368 (2005).

Following the point at which it is determined that all 
relevant evidence has been obtained, it is the Board's 
principal responsibility to assess the credibility, and 
therefore the probative value of proffered evidence of record 
in its whole.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); 
Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. 
Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited 
therein).

The Board has reviewed all the evidence in the appellant's 
claims file.  Although there is an obligation to provide 
adequate reasons or bases supporting this decision, there is 
no requirement that the evidence submitted by the appellant 
or obtained on his behalf be discussed in detail.  Rather, 
the Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 
122, 128-30 (2000).

III.  Factual Background and Analysis

The veteran had active service from October 1962 to June 
1971, during which time he had two tours in the Republic of 
Vietnam.  His primary MOS's were as a steward and cook; he 
earned the Sharpshooter (Rifle, M-1) and Marksman (Rifle, M-
14) badges.  He was undoubtedly exposed to some acoustic 
trauma.

Service records show neither complaints nor findings of 
tinnitus.  Post-service clinical records make no mention of 
tinnitus until the veteran's initial claim for compensation 
benefits in 2004.  

One mental health evaluation and status report in 2004 
referred to his having memory problems and having had a head 
injury after service, some 20 years ago during a robbery.

Social Security Administration records are in the file, and 
do not mention tinnitus as a result of service.

He was seen for a clinic visit in February 2005 for impacted 
cerumen in the left ear, which was removed without untoward 
results.   

On VA examination in April 2005, the veteran reported that he 
had experienced a gradual decline in hearing since service.  
He explained that he had been exposed to artillery fire, 
aircraft engine noise, and gunfire when flying supplies 
(including on noisy helicopters on several occasions) to 
ground troops in service.  He said he had also been exposed 
to noise in construction work after service, during which 
time he only occasionally used hearing protection.  He now 
had ringing in his ears about 2-3 times a year during the 
summertime, in conjunction with allergy symptoms.  The 
examiner opined that the tinnitus was rare; and that the 
ringing in his ears was not likely due to military noise 
exposure.

In his NOD, the veteran reported that the VA examiner 
misunderstood him in that what he had intended to say was 
that he had worsening of the tinnitus 2-3 times a year, not 
that he just had it only during the summer months.  He argued 
that a new examination should be undertaken due to that 
misunderstanding, and opined that he could not understand how 
his tinnitus was not connected with his noise exposure in 
service.  In his Substantive Appeal, he argued that, since 
the examiner made a mistake on the examination, e.g., 
misunderstood his comment with regard to the current nature 
of his tinnitus history, a new examination should be 
obtained.

In assessing the veteran's claim for service connection for 
tinnitus, it is acknowledged that he had some noise exposure 
in service, and this is recognized in the grant of service 
connection for his hearing loss.  However, there is no in-
service evidence of tinnitus, nor were there complaints of 
tinnitus for decades after service.  And while tinnitus is a 
condition subject to lay observation, that is not the same as 
saying that it may be subject to lay diagnosis or opinion as 
to its causation.  There is no medical opinion of record to 
support his assertion in that regard.  

Any alleged error by a VA examiner in not accurately 
identifying the specific nature of the current tinnitus is 
not an error in a medical sense, but simply a variant of the 
description of current symptoms.  It is not pivotal to the 
critical element important herein, namely the etiology 
thereof.  Regardless of the nature of his current tinnitus, 
including as described on VA examination or as otherwise 
clarified and characterized by the veteran himself, it is not 
an element which is necessarily pertinent to such a 
diagnosis.  A new examination would not alter either, would 
not provide additional information other than what is already 
of record, and is not necessary.  

However, for purposes of this decision, the Board certainly 
recognizes the validity of the veteran's observation and his 
several statements as to what he intended to be the 
description of his current tinnitus symptoms.

It is significant to note that not only did the recent VA 
examiner specifically opine that the veteran's currently 
claimed tinnitus is not due to military noise exposure, but 
there are several equally if not more viable alternative 
bases for post-service incurrence of the disability for which 
there is corroborative objective data in the file, e.g., head 
injury, post-service construction noise exposure, and 
association with allergies.  

There is no reason to re-examine the veteran in such a case 
as this, where the medical foundation of record is entirely 
adequate to render a judgment.  As noted above, a new 
examination would not provide any edifying factual basis 
since the fact or current character of his tinnitus is not 
the issue but rather its causal relationship to service or to 
his recognized hearing loss. 

And in any event, there is no sound, credible medical basis 
for associating the tinnitus either with service or with the 
service-connected hearing loss.  The evidence in that regard 
is not equivocal, and a reasonable doubt is not raised to be 
resolved in the veteran's favor.  Service connection for 
tinnitus is denied.  


ORDER

Service connection for tinnitus is denied.



_________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs