Citation Nr: 0814407 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-37 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from November 1985 to January 1998 with approximately six months of prior active service. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2007, the veteran appeared at a hearing at the RO before the undersigned. FINDING OF FACT The preponderance of the evidence is against a finding that the veteran currently has tinnitus related to service. CONCLUSION OF LAW Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in June 2006, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In light of the Board's denial of the veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claim. Thus, the duties to notify and assist have been met. Analysis The veteran contends that he has tinnitus related to service. He testified at his hearing that as a transportation management coordinator, he was exposed to acoustic trauma from tanks because of the diesel engine and main gun. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Regarding the veteran's assertions of noise exposure in service, he is competent to report in service noise exposure. Charles v. Principi, 16 Vet. App. 370 (2002). The veteran's Form DD-214 shows that his military occupational specialty (MOS) was traffic management coordinator. The Board concedes he had noise exposure in service. While service medical records, including his examination at service discharge, are silent for any complaints of tinnitus, the veteran currently has bilateral tinnitus as noted in VA treatment records and an October 2006 VA examination report. The October 2006 report, which was not completed in conjunction with review of the claims folder, noted the veteran's report that tinnitus was first noticed while on a live fire exercise in service. The October 2006 audiologist added an addendum to his report in November 2006 after review of the claims folder. The audiologist opined that it was not likely that military or noise exposure caused or contributed to tinnitus. Based on the evidence, the Board finds that service connection for tinnitus is unwarranted. While the veteran currently has tinnitus, there is no competent medical evidence it is related to service. Service medical records are negative for any complaints. While the veteran testified to experiencing tinnitus two years into service, the first documented indication of tinnitus was not until 2006. This is eight years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Furthermore, there is no competent medical evidence which provides a nexus between service and current complaints of tinnitus. In fact, in the November 2006 addendum to the October 2006 VA examination report, the audiologist specifically opined that it was not likely that military or noise exposure caused or contributed to tinnitus. Therefore, service connection is denied. In adjudicating this claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran in the current appeal is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has tinnitus related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). (CONTINUED ON NEXT PAGE) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs