Citation Nr: 1318073 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-31 922A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: John E. Walus, Attorney at Law ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from March 1943 to February 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal following a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. (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).) In a July 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran requested a Travel Board hearing. In a VA Form 9, received in August 2010, the Veteran requested a Board videoconference hearing. In October 2011, the RO received the Veteran's VA hearing response form which indicating that the Veteran was withdrawing his request for a Board hearing. Nonetheless, the record reflects that the Veteran was later scheduled for a Board videoconference hearing. He failed to report for the hearing but was to be rescheduled. Subsequently, in May 2013, the Board was notified by the Veteran's attorney that the Veteran had been consulted and that he no longer wished a Board videoconference hearing due to his bad health and location of residence. Accordingly, the Board considers the Veteran's hearing request to have been withdrawn. 38 C.F.R. § 20.703(e) (2012). FINDING OF FACT Tinnitus was not shown in service, and there is no competent, credible evidence suggesting a nexus between any current tinnitus and the Veteran's period of service. CONCLUSION OF LAW The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the current appeal, a pre-decisional letter dated in February 2008 complied with VA's duty to notify the Veteran of what he needed to substantiate his claim. Specifically, this letter apprised the Veteran of what the evidence needed to show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on his behalf. Additionally, the letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Therefore, adequate notice was provided to the Veteran. The Board finds compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist a Veteran in the development of his claim. Here, the Veteran's service treatment records (STRs) are associated with the claims folder as are VA and private treatment records, to include audiograms from Beltone Hearing Aid Center. Neither the Veteran nor his attorney has otherwise identified additional medical evidence (VA or private) pertinent to the claim on appeal that needs to be obtained. Also, the Veteran was provided a VA fee-basis audiological examination in June 2008. The medical provider later contacted the Veteran in August 2008 to obtain additional information and clarification regarding his claimed tinnitus. Otherwise, VA records associated with the claims folder reflect the Veteran's failure to report for a scheduled October 2011 VA audiological examination. (The examination may have provided pertinent evidence with regard to the Veteran's claim for service connection for tinnitus.) The Veteran was later notified in a February 2012 rating decision of his failure to report to the scheduled examination. A review of the claims folder (to include the Veteran's Virtual VA electronic folder) does not reflect a response from the Veteran concerning his failure to report to the scheduled audiological examination. Additionally, the Veteran has submitted arguments in support of his claim. Neither the Veteran nor his attorney has identified and the record does not otherwise indicate that any additional existing evidence that is necessary for a fair adjudication of the appeal has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. § 1110; 38 C.F.R. § 3.303. The Veteran has reported experiencing tinnitus in service due to acoustic trauma and that such tinnitus has continued since service. The Veteran is qualified (competent), as a layperson, to report symptoms such as ringing in his ears (tinnitus). Furthermore, nowhere do VA regulations provide that the Veteran must establish service connection through medical records alone. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board may also not reject the Veteran's statements regarding any in-service injury without properly assessing the weight and credibility of the statements. See Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran first filed his claim for service connection for tinnitus in October 2007, more than 60 years following his release from active service. He has not reported having received any treatment for, or necessarily being diagnosed with, tinnitus. In an October 2007 statement associated with his claim for service connection, the Veteran reported that he suffered from hearing loss and from tinnitus a result of exposure to small arms fire during military training as well as during military operations in New Guinea. A review of the Veteran's STRs does not reflect complaints, diagnosis, or treatment for tinnitus or ringing in the ears. Associated with his claim for service connection, the Veteran submitted a Beltone audiogram, dated in October 2007, which included a case history form. In particular, the Veteran's noted responses to questions posed in the case history form reflect that he first noticed a hearing problem three years previously, and that his hearing problem had come on gradually (the words "work noise" were also associated with the response to this question). With respect to the question of whether the Veteran had noticed any ringing or other unusual noises in his ears, the written answer to this question was "normal." Subsequently, in a March 2008 VA Form 21-4142 (Authorization and Consent to Release Information to VA), the Veteran reported that his hearing loss was due to his use in service of quinine to prevent malaria. In a report of June 2008 VA fee-basis audiological examination, conducted by Bieri Hearing Services, the Veteran was noted to report having been exposed to artillery shell, tank, and aircraft noise in service. The Veteran also reported that since service he had worked at General Motors and had participating in some recreational firearm use. The clinician opined that it was as least as likely as not that the Veteran's identified hearing loss was related to his reported noise exposure in service. No comment or discussion was noted by either the Veteran or the clinician regarding tinnitus. In August 2008, the private clinician from Bieri Hearing Services who had conducted the June 2008 VA fee-basis examination contacted the Veteran. In a statement documenting that contact, the Veteran was noted to have responded negatively to questions regarding tinnitus and/or head noises on intake forms. The clinician also noted the following, [The veteran] was contacted on August 7, 2008 to verify presence or absence of tinnitus. The veteran claimed that he has "ear noises sometimes" but had difficulty in describing these noises. It could not be determined if the answers given were vague due to the veteran's inability to understand clinician questioning or if the tinnitus could be non-organic in nature. The clinician added that tinnitus was known to accompany hearing loss. However, a certain amount of intermittent tinnitus was a normal occurrence in healthy individuals. The examiner concluded that due to the Veteran's negative responses on the initial intake forms and his inability to distinctly describe current tinnitus, an opinion could not be reached as to whether tinnitus was related to active duty. In his Notice of Disagreement (NOD) received in September 2009, the Veteran disputed the clinician's findings and conclusion. The Veteran indicated that it was possible the clinician had confused him. He otherwise commented that "the noise in my ears" had been present since service secondary to noise exposure in the Pacific theatre of operations during World War II. Also of record is an additional Beltone audiogram, dated in September 2010, as well as an October 2009 VA record associated with the Veteran's receipt of hearing aids. Neither record provides pertinent information with respect to the Veteran's claim for service connection for tinnitus. The Veteran has argued that consideration of his claim under 38 U.S.C.A. § 1154(b) would warrant a grant of service connection for tinnitus. Under 38 U.S.C.A. § 1154(b) VA is required to accept as sufficient proof of service connection satisfactory lay or other evidence, with respect to an injury or disease claimed to have been incurred during combat, even in the absence of official records to corroborate incurrence of the claimed injury or disease, provided that the evidence is consistent with the circumstances, conditions, or hardships of such service, and to resolve reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). The Board notes that 38 U.S.C. § 1154(b) has been interpreted as reducing the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease; it is not equivalent to a statutory presumption that the claimed condition is service connected. See Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). See also Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected). In other words, under section 1154(b), lay statements may be sufficient to establish the in-service incurrence of an injury or disease, but application of that section does not alter the fundamental requirements of a current disability or a medical nexus to service. Thus, a veteran who establishes in-service incurrence of an injury or disease through application of section 1154(b) must nonetheless submit sufficient evidence of a causal nexus between that in-service event and his or her current disability. See Wade v. West, 11 Vet. App. 302, 305 (1998). See also Clyburn v. West, 12 Vet. App. 296, 303 (1999) (holding that the provisions of section 1154(b) do not provide a substitute for medical nexus evidence). In the present case, the Veteran's WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) documents that he participated in the New Guinea campaign during World War II. (The New Guinea campaign was one of the major military campaigns of World War II.) Accepting the premise that the Veteran had combat service in World War II, and assuming the applicability of section 1154(b) to the Veteran's claim, the Veteran is still required to submit evidence of a causal relationship between any current tinnitus and his military service. The Board has weighed the Veteran's contentions and reports regarding tinnitus with the other evidence of record. As noted above, the Veteran is competent to report that he experiences ringing in his ears. Nonetheless, in assessing the value of the Veteran's statements regarding tinnitus and its onset, the Board finds such evidence to be less probative and persuasive in comparison to other pertinent evidence associated with the claims folder. The Board is mindful that when assessing a claim, it may not consider the absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Thus, the lack of any medical evidence documenting complaints by the Veteran of tinnitus or ringing in his ears for many years (60) after service, is not fatal to the Veteran's claim. Nonetheless, the Board finds this evidence weighs against the claim for service connection when read in conjunction with the Beltone case history form from October 2007 (noting a lack of complaint for tinnitus or ringing in the ears), in addition to the Bieri Hearing Services clinician's finding that she was unable to relate any tinnitus claimed by the Veteran to his period of active service. Furthermore, the record is otherwise completely devoid of any medical evidence of a diagnosis of tinnitus, or suggesting that any current tinnitus can be attributed to the Veteran's service or to continued symptoms since service. Therefore, the Board finds that the competent evidence of record, both lay and medical, weighs against the Veteran's claim for service connection. As for the Veteran's statements, the Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Here, the Veteran is competent to report that he remembers experiencing tinnitus during service and thereafter; however, the Board finds his statements incredible. He filed a claim within a few years of service and did not note tinnitus then. In fact, decades passed before he mentioned it. Additionally, when questioned about it, his answers were vague. Even as of 2007, when examined by Beltone, he did not report tinnitus. Such evidence causes the Board to conclude that the Veteran's story articulated as part of his claim for monetary benefits that he had tinnitus during service is not credible. Consequently, the greater weight of the evidence is against his claim of service connection. For the reasons set forth above, the Veteran's claim for service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the provisions of 38 U.S.C.A. § 5107(b); however, as the preponderance of the evidence is against the Veteran's claim, such provisions are not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs