Citation Nr: 1333171	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-30 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from May 1968 to December 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for tinnitus.  A timely Notice of Disagreement (NOD) as to those issues was received from the Veteran in September 2008.  After a Statement of the Case (SOC) was issued in June 2009, the Veteran perfected his appeal in August 2009, via VA Form 9 substantive appeal.


FINDING OF FACT

The Veteran's tinnitus is unrelated to a disease or injury of service origin.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

A pre-rating June 2008 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for tinnitus.  Consistent with Dingess, the letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's August 2008 rating decision.  Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  His service treatment records, claims submissions, lay statements, identified and relevant VA treatment records have been associated with the record.  The Veteran was also afforded a VA examination for tinnitus in July 2008.  This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's tinnitus.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

II.  Service Connection

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  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.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  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).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

III.  Analysis

In this case, the evidence shows that the Veteran has current tinnitus.  In that regard, the July 2008 VA examiner diagnosed tinnitus based upon the Veteran's subjective report.

Since the evidence above demonstrates a current diagnosis of tinnitus, the disposition of the Veteran's claim for service connection turns upon the question of whether that tinnitus is etiologically related to his active duty service.  As discussed below, the weight of evidence in this case does not show a relationship between the Veteran's tinnitus and active duty service. 

The Board concedes that the Veteran sustained acoustic trauma during service; however, the evidence does not show that the Veteran sustained any tinnitus as a result of such trauma.  The Veteran underwent almost yearly flight examinations and hearing evaluations from 1971 to 1991.  Upon separation, the Veteran completed a medical history form dated in October 1991, in which he denied ear trouble. 

In a December 2007 VA progress note, the Veteran presented for a full audiological evaluation.  He complained of intermittent tinnitus and communication difficulties.  The Veteran reported that he first noticed his tinnitus one month ago and that it has become more noticeable since then.  His tinnitus is constant and described as a high-pitched tonal/ringing sound.  The tinnitus does not interfere with activities of daily living or the ability to fall asleep.  

In the report from the July 2008 VA examination, the VA examiner opined that it was less likely as not that tinnitus was caused by or a result of active duty service.  As rationale, the examiner noted as the Veteran had normal hearing in service and did not report tinnitus until 2007, the "record and history do not substantiate the claim of hearing loss and tinnitus as a result of military noise exposure."

The only evidence suggesting a positive nexus between the Veteran's tinnitus and his in-service noise exposure are from the Veteran himself.  The Board recognizes the Veteran assertions in statements dated in November 2008 and January 2010, that "if I had reported to the medics every time there was a ringing in my ears, I would have been relieved of my duties."  His statements indicate that the he is asserting the onset of tinnitus in service.  The Board finds it significant, however, that he specifically denied any history of ear problems at separation.  Furthermore, in a December 2007 VA progress note, the Veteran reported he noticed tinnitus about a month prior.  For these reason, the Board must find the assertions of the Veteran that he began experiencing chronic symptoms in service not credible.

In this regard, the Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time.  The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints regarding tinnitus for more than 15 years after service.  Rather, the Board is relying also on the fact that the Veteran specifically denied a history of ear problems at separation and on the Veteran's own description to a VA physician in 2007 of the circumstances under which his symptoms began.  Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains an instance in which the Veteran specifically denied having any relevant symptoms.  The Veteran underwent multiple hearing loss evaluations in service and had every opportunity to discuss the continuity of complaints to treating personnel, but did not do so.  Thus, there is affirmative evidence, rather than merely a lack of contemporaneous evidence.  Consequently, the Board concludes that the current assertions by the Veteran as to experiencing a continuity of symptomatology since service are not credible.

Having found that there is no credible evidence of a continuity of symptomatology since service, the Board finds that the Veteran, as a lay person, is not otherwise competent to link his current tinnitus to either his in-service noise exposure or the symptoms he experienced in service.

Overall, the preponderance of the evidence is against the Veteran's claim of service connection for tinnitus, and the claim must be denied.  In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for tinnitus is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs