Citation Nr: 1328882 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-36 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. FINDING OF FACT Tinnitus did not manifest during active service or result from disease or injury in service. CONCLUSION OF LAW Entitlement to service connection for tinnitus is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties under Veterans Claims Assistance Act of 2000 (VCAA) Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 or her representative, if any, 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). This matter was filed as a fully developed claim (FDC) pursuant to Secretary of Veterans Affairs Eric K. Shinseki's program to expedite VA claims. Under this framework, a claim is submitted in a 'fully developed' status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran is to submit all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran. See VA Form 21-526EZ. The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. See VA Form 21-526EZ. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of 'relevant' records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). To participate in the fully developed claims process, the Veteran agreed to submit all private treatment records relevant to the claim. In addition the RO has obtained the Veteran's service treatment records, and VA treatment records (December 2012 examination). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Thus, the Board finds that all necessary development has been accomplished. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4). The Veteran was afforded a VA medical examination in December 2012. The examiner, a medical professional, reviewed the Veteran's claims file, including all of the service treatment records submitted. The examiner provided a thorough opinion. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio, 16 Vet. App. 183. II. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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). In this case the first Shedden element has been met as there is a diagnoses of tinnitus. The second two Shedden elements, in service incurrence, and nexus, have not been met. The Veteran's statements relative to his claim for tinnitus are competent in that the Veteran can testify to the ringing in his own ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). It is also within the realm of common knowledge that exposure to loud noises may cause tinnitus. Therefore, the Veteran's lay opinion could be sufficient to serve as the required nexus for his tinnitus claims. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). During the December 2012 VA examination the Veteran reported that his tinnitus started about a year after he left the military in 1968. The Veteran further reported that he was exposed to excessive artillery noise about 2-3 times per week with hearing protection. After the military the Veteran spent 35 years working for McDonnell Douglas as a supervisor and that he had to wear hearing protection while in the shop area and also recreationally hunted. The Veteran, through his representative, filed a VA Form 9 which again alleged that he noticed the tinnitus about a year after leaving the military. The Board finds this evidence credible. The Veteran's credible assertions are further confirmed by the VA Examination which found that the Veteran's tinnitus was not incurred or caused by military service. The Board therefore finds that the Veteran's tinnitus did not start until a year after military service and accordingly this condition neither incurred during military service, or was caused by military service. As such, service connection for tinnitus is not warranted on a direct basis. The Board further notes that service connection for certain organic diseases of the nervous system may also be established based on a legal "presumption" by showing that such had manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). The Board observes that tinnitus is not considered an organic disease of the nervous system, nor does it constitute one of the other diseases listed under 30 C.F.R. 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Therefore, service connection is not warranted on a presumptive basis. In reaching these conclusions, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that service connection is warranted for his tinnitus. Nevertheless, all the evidence on the record shows that the Veteran's tinnitus did not start until after service. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs