Citation Nr: 1338238 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-01 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma. THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The appellant served in the Army National Guard from December 14, 2001 to January 14, 2005, which service included periods of active duty for training from January 28 to August 6, 2002, and from June 14 to June 28, 2003, and inactive duty for training on January 11 and January 12, 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The appellant's tinnitus is not related to noise exposure in service. CONCLUSION OF LAW The appellant does not have tinnitus that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 101(24), 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, VA's duty to notify has been satisfied through a notice letter dated in June 2009, which fully addressed all notice elements. This letter informed the appellant of what evidence was required to substantiate his claim for service connection and of the appellant's and VA's respective duties for obtaining evidence. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the appellant have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist in locating additional records has been satisfied. A VA examination was not provided in conjunction with the service connection claim for tinnitus, and the evidence of record does not warrant one. VA has a duty to provide an examination when the record lacks evidence to decide the appellant's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4). A VA examination is not necessary here because there is no evidence that meets even the "low threshold" of indicating that the claimed tinnitus may be associated with any event during qualifying service, including noise exposure therein. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). There is no medical evidence suggesting such a nexus and the appellant has not alleged that his tinnitus manifested in service. Instead, he has merely put forth a bare allegation that his current tinnitus is related to military service. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). It is not enough, however, that an injury or disease occurred in service; there must be a chronic disability resulting from that injury or disease. To prevail on the issue of service connection, there must be competent evidence of "(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). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, "a legal concept determining whether testimony may be heard and considered," and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Except as otherwise provided by law, the appellant has the responsibility to present and support his claim for benefits. In deciding the claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant seeks service connection for tinnitus based on his Military Occupational Specialty (MOS), which was that of health care specialist. The appellant did not indicate when his tinnitus began. See June 2009 claim. Service treatment records are silent for any complaints, diagnoses, or treatment related to tinnitus, and a private audiological record dated in September 2004 is also negative for any such complaint. Post-service medical evidence consists of VA and private treatment records. A VA treatment record dated in March 2006 reflects a complaint of tinnitus. As stated, entitlement to service connection requires competent evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship (nexus) between the claimed in-service disease or injury and the current disability. Although the appellant has not been diagnosed with tinnitus, the Board finds that he is competent to attest to the presence of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). The Board also finds the appellant's assertion that he experiences tinnitus to be credible. As such, the appellant's testimony regarding the presence of tinnitus is sufficient to serve as evidence that the disability currently exists. Thus, the requirement of a present disability has been fulfilled. With respect to the second requirement, an in-service injury, the appellant has alleged exposure to acoustic trauma during his active duty for training. The appellant stated that he was exposed to acoustic trauma over a period of five days in 2003 when he trained on a live fire range without hearing protection. See January 2011 statement. The appellant also submitted a document that outlined his employment history from 2001 to January 2010. See February 2010 notice of disagreement and attachment. The document was provided to "show that the only time [he] was exposed to acoustic trauma was while in the National Guard," when he participated in "numerous live fire exercises and was present on the range as a medic." The appellant recounted that the "live fire exercises included heavy artillery and mortar fire." Id. The appellant's DD Form 214 shows that his Army Military Occupational Specialty (MOS) was that of health care specialist. The Director of the VA Compensation and Pension Service has developed a Duty MOS Noise Exposure Listing that estimates the expected hazardous noise exposure for a given MOS. See VA Fast Letter 10-35 (September 2, 2010). According to the listing, a health care specialist has a low probability of in-service exposure to hazardous noise. The Board finds that the appellant is competent to describe noise exposure in service. It also finds that the appellant's reports of exposure to heavy artillery and mortar fire during training are credible, as they are consistent with military training and service generally. However, the appellant's service treatment records are silent for any complaints of tinnitus, as is the 2004 report from a private audiologist. Indeed, the first complaint of tinnitus, as shown by the medical evidence of record, was in March 2006. Accordingly, the Board concludes that, while there was some noise exposure in service, the competent evidence of record does not support a finding that his tinnitus first manifest itself in service. With respect to the third requirement of service connection, the record does not establish a relationship between the appellant's tinnitus and any event coincident with service, including noise exposure. Insomuch as the appellant has attempted to establish a nexus through his own lay assertions, the Board finds that absent a manifestation of tinnitus in service, the etiology of his tinnitus falls outside the realm of common knowledge of a lay person. As such, the appellant is not competent to provide evidence on the issue of causation. See Jandreau, supra. Accordingly, without competent and credible evidence of a nexus between the appellant's tinnitus and noise exposure in service, the Board finds the preponderance of the evidence is against the claim. In short, there has been no showing that tinnitus, first shown after periods of qualifying military service, is traceable to any event coincident with any period of service, including noise exposure during any period of active duty for training or inactive duty training. Therefore, based on the entirety of the evidence of record, the Board finds that entitlement to service connection cannot be granted. As discussed, the appellant's claim fails because there is no competent evidence of a nexus to an event coincident with service. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule does not help the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs