Citation Nr: 1335432 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-26 682 ) 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 Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from March 1983 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The evidence of record does not show that the Veteran's current tinnitus was incurred in or as a result of active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to service connection for tinnitus. VA's duties to notify and assist the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five 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. Following the receipt of the veteran's 2010 claim for service connection for tinnitus, among other disorders, the RO issued an April 2010 letter which advised the veteran of the criteria for service connection, and the criteria for assigning an evaluation and effective date should service connection be granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that no defect in the timing or content of notice to the Veteran is apparent from the record. The Veteran's communications demonstrate that he received notice regarding relevant evidence. The Board finds that notice in compliance with the VCAA has been provided. The veteran's service treatment records are associated with the claims file. The Veteran has been afforded VA examination. The Veteran has not received VA treatment for tinnitus, so the duty to assist does not require that VA treatment records be associated with the claims file. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. The Veteran has not indicated that he has applied for or is receiving Social Security Administration (SSA) benefits of any type, so no additional governmental records are available. On the Veteran's formal claim (Veteran's Application for Compensation or Pension, VA Form 51-526), received by VA on April 6, 2010, the Veteran specified that he sought private medical evaluation for tinnitus in 2009. Subsequently, VA sent a letter to the Veteran, dated April 19, 2010, which explained to him how VA obtains "evidence related to your claim and the legal requirement for supporting your claim." This letter, among other things, specifically identified information it needed from the Veteran, including a request to "Complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each health care provider to include Dr. [D. H.], so that we can obtain treatment information. You may want to obtain and send us the information yourself." The claimed records of that provider are not associated with the claims file because the Veteran has not submitted such records or otherwise provided the authorization for VA to obtain them on his behalf. VA has fulfilled its duty to assist the Veteran in attempting to obtain evidence that may substantiate the claim. To the extent the evidence identified by the Veteran in his formal claim may be favorable, the Veteran has a responsibility to cooperate with VA in its efforts to assist in the claim's development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence, including his obligation to present his own person to VA for a medical examination in a claim for a rating increase.) Since 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, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Law and regulations applicable to a claim for service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as an organic disease of the nervous system, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Assuming that tinnitus is an organic disease of the nervous system, presumptive service connection is applicable in this case. Alternatively, if a chronic disease, as described above, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Claim for service connection for tinnitus The service treatment records reflect that hearing loss was noted at the time of the Veteran's December 1982 examination for induction. There is no notation that the Veteran reported tinnitus at that time. The Veteran was placed on a special profile which prohibited exposure to noise in excess of 85 decibels. The Veteran was required to wear hearing protection. There is no notation that the Veteran complained of tinnitus in service or at the time of separation examination in February 1986. In his April 2010 claim for service connection for tinnitus, the Veteran reported that he was not treated for tinnitus until 2009. At VA examination conducted in August 2010, the Veteran reported that he first heard a buzzing noise in his ears in service. He reported in-service exposure to noise from helicopters and sheet metal work. He reported that, following service, he was exposed to noise as a sheet metal worker for more than 20 years. He also reported recreational exposure to gun noise. The examiner concluded that the Veteran's current complaints of tinnitus were not related to his service or noise exposure therein. In particular, the examiner explained that the Veteran was advised of pre-existing hearing loss at the time of entry into service, and was placed on a profile to prevent noise exposure. The Veteran did not report tinnitus in service, and the Veteran's hearing was improved at separation as compared to entrance. Therefore, the examiner concluded, it was not as likely as not that current tinnitus was related to the Veteran's service. The Veteran has not been granted service connection for hearing loss, so consideration of a claim for service connection for tinnitus on the basis that it is secondary to a service-connected hearing loss disability is not applicable. The Veteran is competent to report that he first noticed buzzing in his ears when he was in service. However, there is no notation that he reported tinnitus in service. The Veteran himself has stated that he was first treated for tinnitus in 2009. Thus, the record establishes that there is no clinical evidence available to show onset of tinnitus prior to 2009, other than the Veteran's lay report. The mere absence of records of a report of tinnitus during the Veteran's service or proximate to service within one year does not establish that the Veteran's report that he noticed tinnitus in service and chronically thereafter is inaccurate. However, a lapse of time without treatment or notation of a complaint is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). In this case, the fact that the Veteran did not seek medical evaluation for tinnitus until more than 20 years elapsed after his service weighs against the claim. However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the VA medical opinion rendered in August 2010 is unfavorable to the claim. The examiner considered the Veteran's lay report that he noticed buzzing in his ears in service. The examiner noted that left ear hearing loss was present at the time of the Veteran's entrance into service. Thus, even assuming the credibility of the Veteran's lay report that tinnitus was present in service, the etiology of current tinnitus would require medical opinion. Of note, the Veteran did not indicate that the private medical provider who he claims treated him in 2009 linked his tinnitus to noise exposure in service. The Board reiterates that the Veteran did not provide such records or otherwise authorize VA to obtain such records for him. Therefore, the VA examiner's opinion that there is not a 50 percent likelihood that current tinnitus is related to service is of greater weight and persuasive value than the Veteran's lay report that tinnitus has been present since service. As such, the preponderance of the competent and persuasive is against the claim. The provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The claim must be denied. ORDER The appeal for service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs