Citation Nr: 1134833 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-27 497 ) 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: Texas Veterans Commission ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from June 1999 to June 2002. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, inter alia, denied service connection for tinnitus. The case was previously before the Board in February 2011 and was remanded for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review of the issues decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran presented testimony before a Decision Review Officer (DRO) in July 2008. A transcript of that hearing is associated with the claims folder. In her August 2007 Substantive Appeal, the Veteran indicated that she desired a hearing before a member of the Board at the RO. A hearing was scheduled for her in January 2011, but she notified VA in writing that she wished to cancel the hearing and proceed with her appeal. Accordingly, the request for a hearing is withdrawn. 38 C.F.R. § 20.702(e) (2010). FINDING OF FACT The Veteran does not have a tinnitus disability related to her active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2007, which complied with the notice requirements for service connection claims. VA has obtained service treatment records, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Service Connection for Tinnitus Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In addition, certain chronic diseases, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is seeking service connection for tinnitus, which she contends began during service as a result of noise exposure in her job as a cargo specialist. She reports that she was exposed to noise from trains, aircraft, and other vehicles and that hearing protection was not used. Her Form DD214 establishes that she worked as a cargo specialist, and it is conceded that she had moderate noise exposure in service. See VBA Fast Letter 35-10 (Sept. 2, 2010). Service treatment records reflect that the Veteran underwent periodic audiological testing as part of a hearing conservation program. There is no record of any report of tinnitus in service, and tinnitus was not noted during her separation physical examination in April 2002. VA outpatient treatment records reflect that the Veteran complained of ringing in her ears in April 2004. In May 2004, she reported having a ringing or beeping in her right ear that began one year earlier and occurred once every couple of weeks. On examination, the ear canals were clear and the tympanic membranes intact. The Veteran was found to have normal hearing sensitivity bilaterally. The examiner advised the Veteran to get her hearing checked every couple of years or sooner if the ringing grew more severe or increased in frequency. During her July 2008 DRO hearing, the Veteran testified that the ringing in her ears had begun during service. A VA outpatient treatment note dated in June 2009 indicates that the Veteran denied experiencing tinnitus at that time. The Veteran was afforded a VA audiological examination in June 2007, in which she described bilateral, constant, moderate, frequent ringing in her ears a few times per month, lasting a few minutes each time. She stated that the ringing had begun 8 years earlier. She also reported a "floating" type of dizziness that had begun 7 to 8 years earlier. The Veteran's hearing was normal bilaterally, and tympanometry revealed normal middle ear mobility and pressure bilaterally. The examiner reviewed the claims file, noting that there were no complaints of tinnitus in service or in prior VA examinations. She stated that the head noises the Veteran described are consistent with normal auditory function and are not typical of an etiology of noise exposure. She stated that the exact etiology of tinnitus cannot be determined but in her opinion it is less likely than not related to military service. In a May 2011 addendum obtained pursuant to the Board remand, the examiner reviewed the claims file and reiterated that there was no hearing loss in service and no complaints of tinnitus. She noted that in May 2004 the Veteran had reported that her symptoms began one year earlier, while in June 2007 she claimed that she had experienced ringing in her ears for 8 years. The examiner stated that the Veteran described ringing in her ears which occurred a few times a month and lasted for a few minutes. She concluded that this particular description of tinnitus is considered normal cochlear function and not pathological tinnitus. Therefore, it was less likely than not that the Veteran had tinnitus related to her military service. Based on the foregoing evidence, the Board concludes that service connection is not warranted for the Veteran's claimed tinnitus, as the competent evidence does not establish that she has a current disability related to service. The Veteran is competent to describe the symptoms she has experienced that are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board cannot reject, or find nonprobative, lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 ( Fed. Cir. 2006). In this case, the Board acknowledges that the Veteran was exposed to noise in service and that she asserts that her symptoms began in service. However, her statements in this regard have been inconsistent in that she has variously reported the time of onset of her symptoms as 2003 and 2000. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As there is no objective evidence of any complaints of tinnitus in service, continuity of symptomatology has not been established, either by the clinical record or by the Veteran's own statements. Nonetheless, the VA medical examiner duly considered the Veteran's subjective complaints and determined that the symptoms she describes are not indicative of any pathology but rather represent normal ear function. Thus, the competent evidence does not establish that the Veteran has a current tinnitus disability. Without evidence of a current disability, there is no basis for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim must be denied. ORDER Service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs