Citation Nr: 1336948	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  09-31 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Coyle, Counsel






INTRODUCTION

The Veteran served on active duty from September 1974 to December 1980, and on active duty for special work from October 1991 to January 1992, with additional service in the Marine Corps Reserve.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

The Veteran does not have tinnitus that is attributable to active military service. 


CONCLUSION OF LAW

The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  A June 2007 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated in a May 2009 statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).   The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 
The Veteran's available service treatment records (STRs) and Reserve records have been obtained; he did not identify any VA or private treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  Most of his active duty STRs are not on file and, according to the record, cannot be located.  The Veteran was advised of the missing STRs and invited to submit copies of any records in his possession, which he did in July 2008.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  
The Veteran has not been afforded a VA examination to determine the etiology of his tinnitus.  VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006),

Although the Veteran is competent to report symptoms of tinnitus, there is no indication that tinnitus occurred in service, nor is there probative evidence of persistent or recurrent symptoms of tinnitus following discharge from active service.  Thus, an examination is not necessary to decide the claim.  Id.  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).

Analysis

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also 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).  

There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury.  Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999).

The Veteran's STRs from both of his periods of active service have not been located at the National Personnel Records Center (NPRC) in St. Louis, Missouri, and are presumed lost; however, his personnel records have been received, which contain a copy of his 1974 entrance examination.  Additionally, the Veteran has provided a partial copy of his October 1980 separation examination, as well as records documenting hearing loss during service.  

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.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis 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.  Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran asserts that he has tinnitus, which is the result of his active service.  The Veteran is competent to diagnose himself with tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002); see also Layno v. Brown, 6 Vet. App. 465, 467-69  (1994).  (lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).  

The available service records reflect that the Veteran was a heavy vehicle mechanic during his first period of active service, and that he was also exposed to the noise of light weapons fire during training exercises.  Acoustic trauma during service is conceded.  38 U.S.C.A. § 1154(a).  

STRs from 1974 and 1978 show a decrease in the Veteran's hearing acuity bilaterally.  The Veteran did not report symptoms of tinnitus during any of these evaluations.  

In May 2007, the Veteran stated that his tinnitus began in 1980.  High frequency hearing loss was noted on his October 1980 separation examination; however, the Veteran did not report symptoms of tinnitus. 

The Veteran served with the Marine Corps Reserve from 1980 to 1999.  Although the Veteran reported hearing loss during several Reserve examinations, he never reported tinnitus or symptoms of tinnitus.   There is also no indication in any of the Reserve clinical notes reflecting reports of tinnitus, although the Veteran was followed for hearing loss.  There is no indication of tinnitus in the record until May 2007, when the Veteran filed his claim for benefits.  

In July 2009, the Veteran asserted that his tinnitus began "in the 1980s."  He also pointed out that the diagnosis of tinnitus is based on "purely subjective complaints," and that his stated history, "coupled with reasonable inferences from the file," would justify an award of service connection for tinnitus.  

Although the Veteran is competent to describe the onset and frequency of tinnitus, his assertions as to continuous signs and symptoms of tinnitus since service are inconsistent with other evidence of record and are not credible.  

There are no references to tinnitus in the available STRs.  Tinnitus was not identified during any of the multitude of Reserve examinations dating from the early 1980s to 1999.  The Veteran did not report ringing in the ears at any point during his Reserve service, despite receiving ongoing treatment for hearing loss.  The first indication of tinnitus in the record was not until May 2007, when the Veteran filed his claim.  At that time, he stated that his tinnitus had begun in 1980; however, his October 1980 separation examination is negative for reports of tinnitus.  

In July 2009, the Veteran stated that his tinnitus began sometime in the 1980s, after his discharge from active service.  This evidence is at odds with the Veteran's previous assertions that his tinnitus has been continuous since experiencing acoustic trauma in service.  The inconsistency with which the Veteran reports the onset of tinnitus significantly diminishes the credibility of his statements; additionally, his assertions are outweighed by the objective medical evidence of record, which shows no complaints of tinnitus until May 2007, even though the Veteran was followed for hearing loss during his Reserve service and had every opportunity to report ongoing tinnitus.  The Veteran's statements as to the onset of his tinnitus, therefore, are of no probative value.  

The preponderance of the evidence is against the claim for service connection for tinnitus; there is no doubt to be resolved; and service connection for tinnitus is not warranted.




ORDER

Entitlement to service connection for tinnitus is denied.




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs