Citation Nr: 1323122 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 11-07 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1969 to April 1971, and from September 2004 to September 2005, with additional unverified service in the United States Army Reserves between February 1969 and September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for tinnitus. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran has tinnitus. 3. The Veteran's tinnitus was not incurred in service. 4. The Veteran's tinnitus is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in April 2009, prior to the initial adjudication of the service connection claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case in the April 2009 letter, the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In developing the record, the RO has made multiple efforts to locate the Veteran's complete service treatment and personnel records. These efforts have included conducting searches at the VA Records Management Center, the Joint Reserve Base of New Orleans, the National Personnel Records Center (NPRC), the Theater Sustainment Command (TSC) New Orleans, and the Defense Personnel Records Information Retrieval System. In total, the RO made six separate requests for records. In October 2009 correspondence, the Veteran indicated that when coming back from active duty in Kuwait, his unit was assigned to the 337th TSC in New Orleans, Louisiana. He arrived with his unit in New Orleans a few days before Hurricane Katrina made landfall near the city in August 2005. The Veteran indicated that he was unable to remove his service treatment records when he subsequently left New Orleans. When contacting the TSC in New Orleans his unit two months later, the Veteran was informed that the location of his records was unknown. In December 2009, pursuant to 38 C.F.R. § 3.159(e), the RO informed the Veteran regarding the unavailability of his records. This included notifying the Veteran of the opportunity to submit records and a description of the types of records which may help to support his claim. Nonetheless, the claims file does contain at least some service treatment records and service personnel records related to the Veteran's active service and service as a reservist. Additionally, the Veteran was asked to provide VA with any potentially relevant records in his position, however neither the Veteran nor his representative has indicated that he has any such records. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran was afforded a VA examination in January 2010, during which the examiner conducted a physical examination of the Veteran, was provided the Veteran's claims file for review, took down the Veteran's history, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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 disorder at issue, tinnitus, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, any reserve service periods of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of or inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24) (West 2002); 38 C.F.R. § 3.6 (2012). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A lay person is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). 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); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t 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. According to the January 2011 Notice of Disagreement submitted by the Veteran's representative on his behalf, the Veteran claims that tinnitus began during active service, but has not specified any combat-related exposure which he believes is causally related to tinnitus. The Veteran does not allege that the claimed injury occurred as a result of combat against enemy forces or that he ever had such combat. Furthermore, a review of the available official military documentation contained in the Veteran's claims file does not otherwise indicate that the Veteran engaged in combat against enemy forces as contemplated by VA laws and regulations. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not "engage in combat" with the enemy during service, and the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. As indicated above, portions of the Veteran's service records are unavailable, including documentation which may otherwise confirm his periods of ACTUDRA and or INACDUTRA. However, the Veteran does not contend, nor does the evidence of record suggest, that the Veteran suffered an injury or onset of a disability during a period of ACDUTRA or INACDUTRA. Accordingly, the laws and regulations applicable to such periods are not for application in this case. The Veteran's service treatment records reflect that on enlistment examination in February 1969, the Veteran denied a history of ear trouble and hearing loss. On service-department examinations in May 1980 and November 1990, the Veteran's ears and ear drums were normal. The remaining service records reveal no complaints referable to hearing or tinnitus, and other than the Veteran's endorsement of tinnitus to a VA examiner (reported below), there is no evidence of tinnitus since service. On VA examination in January 2010 the Veteran affirmatively denied any in-service noise exposure other than "his time on the rifle range." The Veteran stated that he first noticed tinnitus "just a couple of years ago." Based on the normal audiologic findings in 1969, 1980, and 1990 with the lack of treatment records indicating complaints of tinnitus since service separation, the VA examiner concluded that the Veteran's current tinnitus was not as likely as not related to service. The Board finds that tinnitus was not incurred during either of the Veteran's periods of active duty. In the January 2011 Notice of Disagreement the Veteran's representative indicated that the Veteran's tinnitus started during active duty. While the Veteran's service separation examination is not available from his 1969 to 1971 period of service, subsequent 1980 and 1990 examinations indicate normal ears and no complaints of tinnitus. The Board thus concludes that tinnitus did not begin during the Veteran's 1969 to 1971 period of service. With regard to the Veteran's second period of active duty service from September 2004 to September 2005, service treatment records are not available. However, to the extent that the January 2011 Notice of Disagreement is an endorsement of tinnitus onset during the Veteran's later period of service, the Board finds this to be a not credible assertion. The Veteran is competent to testify on symptoms capable of lay observation such as tinnitus. See Layno, 6 Vet. App. 465. And lay evidence can be sufficient with respect to establishing medical matters such as a diagnosis. Jandreau, 492 F.3d 1372. Nonetheless, here the Veteran told the VA examiner in 2010 that his tinnitus had begun only two years prior; three years after the end of his active duty. Furthermore, the Veteran's own assertions are more probative than nonspecific assertions made on his behalf by his representative. Based on the foregoing, the Board finds that the weight of the competent, probative and credible medical and lay evidence demonstrates that tinnitus began several years after service and is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs