Citation Nr: 21020857 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-34 678 DATE: April 8, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT For the entire period on appeal, the preponderance of the evidence of record does not establish that the Veteran’s tinnitus began in service or is otherwise the result of the Veteran’s military service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in an April 2019 Board decision. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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). Service connection may 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). Tinnitus is recognized by VA as chronic diseases under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, Vet. App. 258 (2015). Where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis 1. Entitlement to service connection for tinnitus is denied. The Veteran contends that he is entitled to service connection for tinnitus. However, as discussed below, the evidence of record does not establish that the Veteran’s tinnitus began in or is the result of military service. First, the Board notes that the Veteran has not specifically alleged that his tinnitus is the result of an in-service injury or event. During his March 2015 VA examination, the Veteran reported that he has had tinnitus for a while, but just learned to live with it. The record contains no lay statements from the Veteran in which he indicate the onset of his tinnitus. Next, service treatment records note no evidence of tinnitus or hearing abnormalities during the Veteran’s January 1970 enlistment exam nor during the Veteran’s August 1973 separation examination. Further, while the Veteran’s enlistment and separation examinations show a threshold shift in the Veteran’s hearing during service, service treatment records do not note any complaints of tinnitus or related symptoms in service. Post service, the record contains no medical records of treatment for or complaints of tinnitus prior to the Veteran’s March 2015 VA examination when the Veteran reported a history of tinnitus “for a while.” Finally, the record does not contain an opinion that the Veteran’s tinnitus is related to military service. Following the March 2015 VA examination, the examiner opined that the Veteran’s tinnitus is less likely than not related to military service, based on no evidence of tinnitus in service. While the examiner incorrectly noted no evidence of a threshold shift in service, a subsequent March 2020 addendum VA medical opinion indicates that the 5-decibel threshold shift in service is not significant. Further the March 2020 opinion indicated that even considering the threshold shifts in service, the Veteran’s tinnitus is less likely than not a result of military service as the evidence of record does not establish an in-service onset based on no complaints of tinnitus upon entrance to service, during service or separation, no significant threshold shifts and normal hearing at separation from service; the examiner noted that tinnitus is usually related to hearing loss. The Board affords probative weight to the Veteran’s lay statement that he has had tinnitus “for a while.” Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is subjective and the kind of condition which lay evidence is competent to describe, to include the time of onset). However, the Veteran’s statements do not substantiate that his tinnitus began in service because the Veteran made no such assertion. The Board also affords probative weight to the March 2020 VA examination which opines that the Veteran’s tinnitus is less likely than not related to military service. This opinion is based on all evidence of record including the Veteran’s lay statements and is supported by the evidence of record which does not show an in-service onset or that the Veteran’ s tinnitus is otherwise related to military service. The record contains no opinion which suggests that the Veteran’s tinnitus began in or is otherwise related to military service. Entitlement to service connection for tinnitus is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, Associate 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.