Citation Nr: 1754861 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-47 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: John P. Dorrity, Agent ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active duty for training from May 1959 to November 1959. This appeal comes to the Board of Veterans Appeals (Board) arising from a rating action by the Regional Office (RO) in Newark, New Jersey, which denied a claim for service connection for tinnitus. In his appeal (VA Form 9), received in September 2017, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in a statement received in October 2017, he withdrew his request for a hearing. See 38 C.F.R. § 20.702 (e) (2017). Accordingly, the Board will proceed without further delay. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran does not have tinnitus that is related to his service. CONCLUSION OF LAW Tinnitus was not incurred in, and is not otherwise due to, the Veteran's service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to service connection for tinnitus. In June 2015, the Veteran filed his claim. In about August 2015, the RO denied the claim, after determining that Veteran status was not shown. See 38 C.F.R. § 3.1(a), (d) (2017) (noting that to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA); see also Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). However, in August 2017, the RO granted service connection for bilateral hearing loss. Thus, veteran status is conferred upon the Veteran for this period of time (May 1959 to November 1959). 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6 (a) (2017). The Board notes that a copy of the RO's rating decision denying service connection for tinnitus is not of record. However, the August 2017 statement of the case is of record. As the Board is able to fully determine the RO's basis for its denial of the claim, and as all of the medical evidence is of record, no prejudice accrues to the Veteran, and the Board may adjudicate the issue without additional development. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a), to include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). A grant of service connection under 38 C.F.R. § 3.303 (b) does not require proof of the nexus element; it is presumed. Id. In Fountain v. McDonald, 27 Vet. App. 258, 260 (2015), the U.S. Court of Appeals for Veterans Claims held that tinnitus is an organic disease of the nervous system which constitutes a disease under 38 C.F.R. § 3.309(a), such that tinnitus now falls within the parameters of 38 C.F.R. § 3.303(b), as to claims of chronicity. The Veteran's discharge (DD Form 214) shows that his specialty title was supply clerk. The Veteran's service treatment records are not of record, and may have been destroyed in the 1973 fire at the National Personnel Records Center. With regard to the medical evidence dated prior to the Veteran's filing of his claim in June 2015, see 38 C.F.R. § 4.1 (2017), VA progress notes show that the Veteran denied tinnitus in December 1999, at which time he reported occupational noise exposure for 22 years as a truck driver. The Veteran denied ringing in his ears March 2005 and March 2006. Private treatment records from Atlantic ENT Associates, dated in 2013, show that the Veteran complained of a history of exposure to loud noise during service, to include artillery, and that since then he had noticed tinnitus. The impression noted hearing loss and tinnitus, for which he was referred to VA for hearing aids. The only relevant medical evidence dated as of the filing of the Veteran's claim in June 2015 is a VA hearing loss and tinnitus disability benefits questionnaire (DBQ), dated in August 2017. This report shows that the examiner indicated that the Veteran's VA e-folder (VBMS or Virtual VA) had been reviewed. The report notes that the Veteran did not report recurrent tinnitus, and that he denied tinnitus. Tinnitus was not diagnosed. The Board finds that the evidence is insufficient to show that the Veteran currently has tinnitus. The August 2017 VA DBQ shows that the Veteran denied having tinnitus, and there was no diagnosis of tinnitus. Although tinnitus was noted in private treatment records dated in 2013, this was prior to the filing of his claim in June 2015, and it is insufficient to show that he currently has tinnitus. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). Accordingly, service connection for tinnitus must be denied. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). With regard to the Veteran's own contentions, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A veteran is presumed competent to report readily observable symptoms such as those related to tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, no service treatment records for the Veteran's active duty are of record, and there is no basis to find that a chronic condition is shown during active duty service. The post-service medical records have been discussed. They show that the Veteran was either noted not to have tinnitus, or to deny ringing in his ears, on three occasions between 1999 and 2006, with no evidence to show that he had tinnitus or ringing of the ears during that time, or at any time prior to 2013. Therefore, any assertion of a continuity of symptomatology is not credible. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board has determined that tinnitus is not currently shown. There is no competent and probative opinion of record in support of the claim. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that he has the claimed condition due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records that are available have been obtained. In this regard, the Veteran's service treatment reports are not of record. In May 2017, the National Personnel Records Center (NPRC) indicated that it did not have any service treatment reports, or any records from the Surgeon General's Office, and that any reports which may have existed may have been destroyed in a 1973 fire. Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment reports. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). VA is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 622 (1992). The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. A May 2017 duty-to-assist letter shows that the RO requested that the Veteran complete a NA Form 13055 in order to allow them to search other sources for the Veteran's records. There is no record to show that this form was ever returned. The Board further notes that the Veteran has not asserted that he received any relevant treatment during service. The RO has obtained post-service VA and non-VA medical records. The Veteran has been afforded an examination. Therefore, the Board finds that VA has satisfied its duty to assist under Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for tinnitus is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs