Citation Nr: 1340486 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-00 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board, in pertinent part, remanded the issue on appeal for additional development in July 2012 and July 2013. This appeal was processed using the Virtual VA and VBMS (efolder) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Tinnitus is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in November 2005. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements in support of his claim. The development requested on remand in July 2012 and July 2013 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, the pertinent evidence shows that upon separation examination in December 1968 the Veteran's ears were found to be clinically normal. In his report of medical history he denied hearing loss or ear trouble. In his July 2005 claim he reported that he had served for more than a year in Vietnam as a gunner and had been exposed to rocket noise. On VA examination in April 2013 the Veteran reported military noise exposure including as a result of guns and artillery with no hearing protection. He denied occupational or recreational noise exposure. The examiner found it was less likely than not that the Veteran's bilateral hearing loss disability and tinnitus were related to his military service. It was noted that his tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss disability, but also noted that he reported an onset of tinnitus during service. In its July 2013 remand the Board found the April 2013 examiner's opinion as to etiology was inconsistent and requested that an additional opinion be obtained. A subsequent September 2013 VA medical opinion is shown to have been based upon a comprehensive review of the medical records and current medical literature. It was the examiner's opinion that it was less likely than not that the Veteran's tinnitus was caused by or aggravated beyond its normal and natural aging process by his time in military service. The Veteran's claimed hearing conditions were found to be age appropriate and consistent with a diagnosis of presbycusis (age-related hearing loss). Based upon the evidence of record, the Board finds the Veteran's tinnitus is not shown to have developed as a result of an established event, injury, or disease during active service. The September 2013 VA medical opinion is found to be persuasive. The examiner is shown to have considered the Veteran's reports of noise exposure in service, but to have found his tinnitus and hearing loss to be age appropriate and consistent with a diagnosis of age-related hearing loss. Although the Veteran may sincerely believe that his tinnitus was caused by his noise exposure in service, he is not competent to provide such opinion. Therefore, the claim for entitlement to service connection for tinnitus must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against this claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs