Citation Nr: 0811674 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-30 911 ) 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 J. M. Wagman, Associate Counsel INTRODUCTION The veteran had active service from July 1968 to April 1970. This case comes before the Board of Veterans' Appeals ("Board") on appeal from a February 2005 rating decision by the St. Louis, Missouri Regional Office ("RO") of the Department of Veterans Affairs ("VA") that denied the veteran's claim for service connection for tinnitus. The appeal is REMANDED to the RO via the Appeals Management Center ("AMC"), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran asserts service connection is warranted for tinnitus because he has had this condition since military service and as a result of acoustic trauma which he alleges occurred during his military service. The veteran and his representative note that he served in Vietnam and report that he served in combat where consequently, he received, among other awards, a Purple Heart and the Vietnam Combat Medal w/ a V-Device. As a result, he argues that he is entitled to the benefit of the combat presumption set forth in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Although the RO Rating Decision states the veteran's service medical records are negative for any indication of complaints of tinnitus, the Board notes a December 1969 physician note that specifically states the veteran complained of constant tinnitus. The veteran is competent to report ringing in his ears and he has asserted that these conditions have been chronically symptomatic since service. See Charles v Principi, 16 Vet. App. 370, 374-75 (2002) (veteran competent to report that he had a continuity of symptomatology since service if symptom is capable of lay observation). In any event, the Board notes that in the absence of any competent medical evidence linking tinnitus to service, service connection cannot be established. In this regard, the Board observes that the United States Court of Appeals for Veterans Claims (Court) has repeatedly held that the provisions of 38 U.S.C.A. § 1154(b) provide a reduced evidentiary burden for combat veterans that relates only to the issue of service incurrence, and does not relate to whether the veteran has a current disability or whether a current disability is linked to the incident in service; those questions require medical evidence. See Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999). Indeed, in Dalton v. Nicholson, 21 Vet. App. 23 (2007) , the Court, citing its decision in Caluza v. Brown, 7 Vet. App. 498 (1995), recently reiterated that a veteran who establishes in-service incurrence of an injury or disease through the application of section 1154(b) must nonetheless submit evidence of a causal nexus between the in-service event and his or her current disability. Although there is a VA exam of record, after reviewing the December 2004 VA examiner's opinion, the Board is not convinced that the examiner was aware of the December 1969 medical record documenting the veteran's complaint of constant tinnitus when providing the VA medical opinion. The examiner did not discuss the record, and in fact, suggests the veteran's current tinnitus is related auditory pathology that has resulted in his severe sensorineural hearing loss that did not exist at the time of his discharge. In other words, because the veteran did not have hearing loss at the time of his military discharge, he could not have had tinnitus. This conclusion is belied by the statements in the veteran's SMRs wherein he complains of constant ringing and any examination concluding otherwise should at least discuss why such evidence is not accorded any credibility. Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of the veteran's tinnitus. All indicated studies should be performed, and all findings should be reported in detail. The claims files should be made available to and reviewed by the examiner, in particular the veteran's service medical records. The examiner should diagnosis any tinnitus present. The examiner should then consider the available medical evidence and the veteran's contentions and opine as to whether it is at least as likely as not that any tinnitus found to be present had its onset in, or is related to, service. The rationale for all opinions expressed should be provided. 2. Thereafter, the RO should readjudicate the veteran's tinnitus claim. If any benefit sought on appeal is not granted in full, the RO should issue a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs