Citation Nr: 21063895 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-26 278 DATE: October 18, 2021 ORDER Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran currently has a diagnosable right knee condition, nor has he experienced it during the pendency of the appeal or recent to the filing of the claim. 2. The competent evidence does not demonstrate that the Veteran currently has diagnosable tinnitus, nor has he experienced it during the pendency of the appeal or recent to the filing of the claim. CONCLUSIONS OF LAW 1. Service connection for a right knee condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 2. Service connection for tinnitus is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1956 to February 1957. He was scheduled for a videoconference hearing before the undersigned Veterans Law Judge in July 2021. He informed the Board that he was cancelling his requested hearing and did not appear for that hearing. As such, the Board may proceed with its adjudication of these matters despite the lack of a hearing without prejudice to the Veteran. In addition, the Board notes that the Veteran's former representative retired from his practice during the pendency of the appeal. The Veteran was informed of his right to appoint new representation in an August 2021 correspondence, and was notified that if he did not appoint a new a representative within 30 days of the date of that correspondence then VA would operate on the assumption that the Veteran wished to proceed unrepresented. To date, the Board has not received any reply to that correspondence, to include any indication that the Veteran sought to appoint a new representative for his claim. As such, the Board may proceed with its adjudication of these matters with the Veteran unrepresented. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board is cognizant that the Veteran's service treatment records (STRs) from his period of active duty have not been associated with the claims file. VA is required to obtain relevant documents held by any Federal department or agency that the Veteran adequately identifies and authorizes the Secretary to obtain. 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(e). The Board acknowledges that VA has a heightened duty to assist the Veteran in developing his claims since the records may have been lost, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O' Hare v. Derwinski, 1 Vet. App. 365 (1991). Case law does not, however, lower the legal standard for proving a claim for service connection but simply increases the Board's obligation to consider that evidence which may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46, 51 (1996). In this case, the Agency of Original Jurisdiction (AOJ) notified the Veteran in a May 2015 letter that his STRs were lost in a fire. Thereafter, in September 2016 and in October 2016, the AOJ requested any information from the Veteran in support of his claims and/or any information which may assist in locating his missing STRs. This process was repeated in May and June of 2018. While the Veteran did respond to these requests, ultimately all attempts to locate any additional STRs did not yield any results. Thus, the Board concludes that VA has taken all reasonable steps to associate the Veteran's service treatment records with the claims file and that therefore it may proceed with its adjudication of the claims before it. 1. Right Knee Condition The Veteran seeks service connection generally for a right knee condition. Without delving into the question of the potential etiology of this condition, the Board finds that the Veteran has never been diagnosed with a right knee condition, and there is no evidence to suggest that such a diagnosis is appropriate. As such, entitlement to service connection must be denied. A review of available VA and private medical records does not reflect that the Veteran has ever been diagnosed with a right knee condition or treated for symptoms of such a condition. As detailed above, there are no service treatment records to review in order to ascertain whether the Veteran incurred a right knee injury while in service. The Veteran himself has presented no objective evidence which demonstrates that he has a diagnosable right knee condition. The Veteran has not been afforded an examination in connection with his right knee service connection claim, but VA does not have a duty to provide one here, as there is no indication that the Veteran even has a diagnosable right knee condition that may be associated with his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, without supporting records, the Board concludes that the Veteran does not have a right knee condition and has not had the condition during the appeal period. The Veteran himself does not have the medical training or credentials to offer an opinion as to a diagnosis or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of competent supporting evidence, a VA examination also is not required. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). 2. Tinnitus The Veteran contends generally that he has tinnitus that is attributable to noise exposure in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran does not have a current diagnosis of tinnitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim, as required for service connection to be granted. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). The Veteran submitted his claim for service connection in May 2018. From that date he has provided VA with no evidence is support of his assertion that he experiences symptoms of tinnitus. The Veteran was afforded a VA audiological examination in June 2018, wherein he explicitly denied experiencing any symptoms of tinnitus even after the examiner explained what those symptoms would be. A further review of all available VA medical records does not reflect that the Veteran has ever endorsed experiencing any symptoms of tinnitus despite receiving periodic care for his hearing loss. The Board acknowledges that the Veteran is qualified (competent) to state that he experiences symptoms of tinnitus, and it can be presumed that he believes he has tinnitus given that he has submitted a service connection claim for the condition. Charles v. Principi, 16 Vet. App. 370 (2002). However, the Board may not simply assume what the Veteran may believe when he has not submitted any statements actually reporting tinnitus symptoms, and, in fact, there is objective medical evidence to the contrary. The Veteran has some responsibility to cooperate in the development of all facts pertinent to his claim, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, there are no available service treatment records to review to determine whether the Veteran experienced tinnitus symptoms during his active duty. Taken together with the objective medical evidence reflecting that he has repeatedly denied experiencing symptoms of tinnitus, the Board finds that the preponderance of the evidence is against a determination that he has tinnitus that is attributable to his service. Therefore, service connection for tinnitus must be denied. In summary, as the preponderance of the evidence is against the Veteran's service connection claim, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.