Citation Nr: 1316115	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  11-23 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from July 1953 to March 1973.  

This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2010 rating decision, by the St. Louis, Missouri, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for tinnitus.  He perfected a timely appeal to that decision.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).  


FINDING OF FACT

The Veteran does not have tinnitus that had its clinical onset in service or is otherwise related to active duty. 


CONCLUSION OF LAW

Tinnitus was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist.

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of letters dated in June 2010 and August 2010 from the RO to the Veteran, which were issued prior to the RO decision in October 2010.  Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The Veteran was also asked to submit evidence and/or information in his possession to the RO.  

The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice.  

The Board also notes that the Veteran was afforded a VA examination with respect to his disability.  38 C.F.R. § 3.159(c) (4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an assessment of the tinnitus disability.  The Board notes that the VA examiner who conducted the Veteran's September 2010 audiology examination was unable to provide an opinion as to the etiology of the Veteran's tinnitus without resort to speculation.  The Court recently held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence.  Id at 390.  As discussed below, however, the examiner in this case provided a basis for her speculative opinion and in view of the finding of no current disability, there is no need for an etiology opinion.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim.  The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review.  The record is complete and the case is ready for review.  

II.  Factual background.

The records indicate that the Veteran entered active duty in July 1953.  His DD Form 214 indicates that his military occupational specialty was as an Infantry Unit Leader; he served in Vietnam from July 1965 to June 1966.  He was awarded the Combat Action Ribbon, the Vietnam Service Medal with 4 stars, the Republic of Vietnam Meritorious Unit Citation, and the Gallantry Cross Color with Palm.  The service treatment records (STRs).  The service treatment records (STRs) are negative for any complaints or findings of tinnitus.  

Post-service VA examination, dated in April 1973, noted bilateral high frequency hearing loss; however, the examination was negative for any complaints or findings of tinnitus.  

The Veteran's claim for service connection for tinnitus (VA Form 21-526) was received in May 2010.  Submitted in support of the Veteran's claim were treatment records from Bridges Walk-in clinic dated from June 2004 to April 2010.  These records are negative for any complaints or findings of tinnitus. 

The Veteran was afforded a VA examination in September 2010.  The examiner noted that no reports of tinnitus were found in the claims file, including STRs and private treatment reports.  The examiner noted that military noise exposure included rifle and pistol team from 1964 to 1965, artillery fire and Howitzers while in Vietnam, weapon qualification, machine gun firing range and demolition training.  Civilian occupations post service consisted of sporting goods manager at Wal-Mart and part time construction using table saw and skill saw.  Exposure to recreational noise included hunting for 2 to 3 years in the 1980s and gas powered lawn equipment, but not in the last 15 years.  The Veteran reported having experienced tinnitus 20 to 30 years ago; he denied any current tinnitus.  He reported periodic tinnitus sometime in the 1980's that lasted a few hours.  With regard to the etiology of the tinnitus, the examiner stated "I cannot resolve this issue without resort to mere speculation."  The examiner indicated that tinnitus is a symptom and can be related to auditory dysfunction and noise exposure in addition to non-auditory factors such as medication and neurophysiological factors.  The examiner noted that the onset of tinnitus was reported in July 1965 per C&P application.  Today, the Veteran did not claim tinnitus.  He recalled periodic tinnitus in the 1980's, and has not noticed tinnitus for 20 to 30 years.  Etiology of tinnitus is unknown.  

VA progress notes dated from October 2010 through April 2011 were negative for complaints of tinnitus.  Received in July 2011 were treatment reports from Dr. Diane Cornelison, dated from April 2008 to July 2011.  These records were negative for any complaints of tinnitus.  

III.  Legal Analysis.

Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1131.  To establish compensation for a present disability, there must be: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (2009).  

For a 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."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  

The Veteran is seeking service connection for tinnitus, which he claims developed as a consequence of service.  However, after review of the record, the Board finds that the preponderance of the evidence is against the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability").  

The Board accepts that the Veteran was exposed to noise in service and had tinnitus at some time in the past.  However, there is no evidence that he currently has tinnitus or that it was exhibited during the appeal period.  The Veteran himself has indicated that tinnitus had its onset many years ago and was last periodically symptomatic more than 20 years ago.  Without a showing of current disability or at least disability that was present at some time during the appeal period. There is no basis to grant service connection.  

The Board recognizes that the Veteran states that he has tinnitus which is due to noise exposure in service.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, the Veteran's claim in this regard is inconsistent with his denial of current symptoms to the VA examiner.  To the extent he is competent to identify tinnitus and relate it to service, his claim that he currently has tinnitus is contrary to statements he has made to the VA examiner and are not credible.  

In summary, there is no competent evidence that the Veteran has tinnitus that was incurred or aggravated in service or is otherwise related to active duty.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Accordingly, service connection is denied.  


ORDER

Service connection for tinnitus is denied.  



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs