Citation Nr: 1138136 Decision Date: 10/13/11 Archive Date: 10/19/11 DOCKET NO. 08-22 757 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision by the RO which, in part, denied service connection for tinnitus. FINDINGS OF FACT 1. All available evidence necessary for adjudication of this claim has been obtained by VA. 2. The Veteran is not shown to have tinnitus at present which is related to service. CONCLUSION OF LAW The Veteran does not have tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & West 2010); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in February 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). With respect to the duty to assist in this case, the Veteran's service treatment records and all VA and identified private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal and was offered an opportunity for a personal hearing, but declined. Additionally, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and an organic disease of the nervous system is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Tinnitus The Veteran contends that his tinnitus is related to service and was caused by acoustic trauma from artillery fire, helicopter engines and other noise exposure, and believes that he is entitled to a grant of service connection. The Veteran's service treatment records are negative for any complaints, findings, abnormalities or diagnosis of tinnitus. Furthermore, the Veteran specifically denied any history of ear trouble on a Report of Medical History for examination in April 1965, and no pertinent abnormalities were noted on examination at that time or when examined for service separation in February 1966. Similarly, the Veteran made no mention of any hearing problems or tinnitus on his original application for VA compensation benefits received in March 1966, or when examined by VA in April 1966, and no pertinent abnormalities were noted on examination at that time. The evidentiary record also includes numerous private medical records showing treatment for various maladies on numerous occasions from December 2000 to 2007, and VA treatment records from 2006 to 2007. Significantly, however, the Veteran never mentioned any hearing problems or history of tinnitus until June 2003, at which time he reported "occasional ringing in his left ear." When examined by VA in June 2007, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints and history. The Veteran reported a history of noise exposure from artillery fire in service, and said that he experienced a gradual onset of tinnitus beginning about four to five years ago. The examiner opined, in essence, that given the Veteran's self-described history of a gradual onset of tinnitus beginning a few years earlier, his noise exposure in service was most likely not a causal factor in his tinnitus. Concerning the Veteran's assertions, while he is competent to provide evidence regarding symptoms he has experienced, any such assertions must be weighed against other contradictory statements of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints]. In this regard, the Board notes that the Veteran has provided inconsistent and contradictory statements concerning the onset of his tinnitus, which reduces the probative value of his statements. Specifically, in a letter received in March 2006, the Veteran reported that he was treated for hearing problems and constant ringing or humming in his ears by a medic in December 1965. He then went on to describe his duties in service, and said that he worked in an S-1 section and rode in helicopters "daily" to pick up mail, but that his primary duty for his entire assignment in Vietnam was as the driver for a colonel. However, in his substantive appeal, received in July 2008, the Veteran stated that he was around combat noise "on a daily basis" from the firing of 8-inch and 105 howitzers and standing duty on a 50 caliber machine gun, and that his tinnitus has been present since then. When examined by VA in June 2007, however, he reported a gradual onset of tinnitus beginning about four to five years earlier. The fact that the Veteran made no mention of any hearing problems or tinnitus at the time of his service separation examination in February 1966, or on his original application for VA compensation benefits received within just a few weeks of his discharge from service, but now claims to have had ringing in his ears since December 1965, raises serious reservations as to his ability to provide accurate and reliable information and reflects negatively on his credibility. Under the circumstances, the Board does not assign any probative value to the Veteran's assertions. As there is no persuasive medical evidence of record suggesting a connection between the Veteran's current tinnitus and service, and no objective evidence of any complaints or manifestations until many years after his discharge from service, the greater weight of the evidence is against the claim. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs