Citation Nr: 1126000 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 08-26 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from to June 1966 to June 1968. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Muskogee, Oklahoma, (hereinafter RO). The case was remanded by the Board for additional development of the claim for service connection for bilateral tinnitus in April 2010 and the case is now ready for appellate review of this issue. FINDING OF FACT There is no competent evidence linking tinnitus to the Veteran's presumed exposure to acoustic trauma in service. CONCLUSION OF LAW Bilateral tinnitus was not incurred in service. 38 U.S.C.A. §§ 1110, 1154(b) 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case by letter dated in September 2007 prior to initial adjudication that informed the appellant of the information and evidence necessary to prevail in his claim. As for the duty to assist, the service treatment reports, VA clinical reports, and reports from the VA examination conducted in May 2010 requested by the Board in its April 2010 remand that includes an opinion as to whether the Veteran has tinnitus as result of service have been obtained. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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). The Court has held that, in order to prevail on the issue of service connection, 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). 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 v. Derwinski, 2 Vet. App. 492, 494 (1992). However, 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 which may reasonably be observed by laypersons. 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). When a wartime Veteran alleges he suffers disability due to an injury incurred in combat, 38 U.S.C.A. § 1154(b) must be considered, permitting the Veteran's undocumented assertions regarding combat-related injuries to be accepted as true. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996). 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 at that time, i.e., in service. It does not apply to the questions of whether there is a current disability or a nexus connecting any current disability to service. See Collette, Gregory, supra. The provisions of 38 C.F.R. § 1154(b) do not obviate the requirement that a Veteran submit medical evidence of a causal relationship between his current condition and his military service. Wade v. West, 11 Vet. App. 302 (1999). The service treatment reports, to include the reports from the June 1968 separation examination and medical history collected at that time, do not reflect any evidence of tinnitus. These facts notwithstanding, it is the Veteran's assertion that acoustic trauma associated with exposure to gun noise during service resulted in tinnitus. The Veteran's DD Form 214 reflects service in the Republic of Vietnam during the Vietnam War, and the U. S. Army and Joint Services (JSRRC) has verified that the Veteran's duty therein included exposure to firefights. As such, and given the provisions with regard to injuries asserted to have been incurred in combat set forth above, the Board finds the Veteran's report of exposure to acoustic trauma as a result of gunfire in service to be credible. See 38 U.S.C.A. § 1154(b). As indicated, exposure to acoustic trauma during service is presumed given the provisions of 38 U.S.C.A. § 1154(b). Thus, the matter for consideration is whether the evidence indicates that any current tinnitus is etiologically related to the presumed in-service acoustic trauma. See Wade, supra. The VA examination conducted in May 2010 to assist in this determination noted the history of in-service weapons fire. However, post-service exposure to acoustic trauma coincident with employment in the proximity of power tools and recreational noise exposure from shooting and the use of a chain saw were also described. The examination report documents review of the claims file, and based on this review and an examination of the Veteran, the examiner concluded that it was less likely as not that the Veteran's tinnitus was the result of service. In support of this conclusion, the audiologist noted the lack of any evidence of tinnitus in the service medical records. Review of the other clinical evidence of record, to include VA outpatient treatment reports dated in 2007 and 2008, does not reflect any other clinical evidence linking tinnitus to service. While the Veteran is competent to describe symptoms of ear ringing since service, also weighing against the claim is the fact that there is no evidence of complaints of tinnitus until the Veteran's application for VA benefits filed in August 2007, 39 years after separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In short, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral tinnitus, which was not demonstrated in service, was first complained of many years after service, and has not been linked by the most probative evidence of record to service. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus, the doctrine is not for application. Gilbert, supra. ORDER Entitlement to service connection for bilateral tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs