Citation Nr: 1335441 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-30 204 ) 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 J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Tinnitus was not shown in service or for many years after service. 2. VA audiologists have concluded the Veteran's tinnitus is unrelated to service. 3. The Veteran's reported history of having tinnitus since service is not credible. CONCLUSION OF LAW Tinnitus was not incurred in service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The notice requirements set out in 38 U.S.C.A. § 5103, and its implementing regulations were met by means of a letter to the Veteran dated in April 2010. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and was afforded an opportunity for a personal hearing, but declined. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Tinnitus means a noise in the ears, such as ringing, buzzing, roaring, or clicking; it is usually subjective in type. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1914 (30th ed., 2003). Indeed, tinnitus is a disability uniquely ascertainable by the senses, and lay assertions as to its existence and duration can be probative. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Veteran reported at the July 2010 VA audiology and nose/throat/larynx examinations that he had experienced tinnitus since his military service, and that it has continued through the present time. However, for a number of reasons the Board does not consider this to be reliable as to accord it significant probative value. First, it is observed that the Veteran's service treatment records do not reflect reports or diagnoses of tinnitus; with the March 1964 service separation examination specifically noting that the ears were normal on clinical evaluation. The purpose of the examination is to identify disability, and the claimed condition was not identified. Second, this is not the Veteran's first claim for disability benefits related to subjective complaints. In 1973, he submitted an application for VA benefits that included one for "pains in eyes." It is not unreasonable to think that had tinnitus also been present at that time and had been continually so since service, it would have been mentioned in this claim. Since it was not mentioned, it is reasonable to conclude it was not present. Third, the Veteran made no mention of this complaint when he was examined for VA purposes in 1973 and 1976. Fourth, he has not reported a consistent history of the condition, advising a June 2010 sinus examiner that it was related to an in-service blow to the ear, and reporting to an audiologic examiner in July 2010, it began from his exposure to hazardous noise in-service. Lastly, the Veteran has an obvious immediate financial incentive to report facts in a light most favorable to his claim, which could cloud his memory of the remote history he is now reporting. In view of all these factors, the Board does not consider the Veteran's reported history to be reliable, or should be accorded probative value. Turning to the documentary evidence, the record does not show the presence of tinnitus in service, or for decades thereafter. When examined in connection with the claim, in July 2010, the examiner considered it unlikely the Veteran's tinnitus was related to service since he failed to complain about it. Similarly, a January 2012 opinion from a different audiologist concluded it was unlikely tinnitus was related to service, given the decades long absence of any complaints to a medical professional following service, as well as the Veteran's post service noise exposure which could be a likely cause. There is no medical opinion linking the Veteran's tinnitus to service. Under these circumstances, the greater weight of the evidence is against the claim. ORDER Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs