Citation Nr: 0601551	
Decision Date: 01/18/06    Archive Date: 01/31/06

DOCKET NO.  04-40 252	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri



THE ISSUE

Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

J. Connolly Jevtich, Counsel





INTRODUCTION

The veteran served on active duty from November 1947 to 
November 1951 and from October 1953 to October 1957.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2003 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri.  In that decision, the RO granted 
service connection and assigned a noncompensable (zero 
percent) evaluation for bilateral hearing loss.  The RO also 
denied service connection for tinnitus.  In a January 2005 
decision, the Board denied a higher rating for bilateral 
hearing loss and remanded the issue of service connection for 
tinnitus.  


FINDING OF FACT

Tinnitus is not attributable to service.


CONCLUSION OF LAW

Tinnitus was not incurred or aggravated in active service.  
38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2005); 
38 C.F.R. §§ 3.303, 3.304 (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

There has been a significant change in the law with the 
enactment of the Veterans Claims Assistance Act of 2000 
(VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 
5126 (West 2002).  To implement the provisions of the law, 
the VA promulgated regulations at 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a)).  The amendments became effective 
November 9, 2000, except for the amendment to 38 C.F.R. 
§ 3.156(b) which became effective August 29, 2001.  Except 
for the amendment to 38 C.F.R. § 3.156(a), the second 
sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 
3.159(c)(4)(iii), VA stated that "the provisions of this 
rule merely implement the VCAA and do not provide any rights 
other than those provided in the VCAA."  66 Fed. Reg. 
45,629.  Accordingly, in general where the record 
demonstrates that the statutory mandates have been satisfied, 
the regulatory provisions likewise are satisfied.  The Act 
and implementing regulations eliminate the concept of a well-
grounded claim, redefine the obligations of VA with respect 
to the duty to assist, and supersede the decision of the 
United States Court of Appeals for Veterans Claims in 
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.  
Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding 
that VA cannot assist in the development of a claim that is 
not well grounded). 
 
First, VA has a duty to notify the claimant and his or her 
representative, if represented, of any information and 
evidence needed to substantiate and complete a claim.  
38 U.S.C.A. §§ 5102, 5103.  VA must inform the claimant of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim, (2) that VA will seek to 
provide, and (3) that the claimant is expected to provide.  
In what can be considered a fourth element of the requisite 
notice, VA must "also request that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claim."  38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. 
§ 5103A(g).  VA has satisfied its duty to notify by means of 
September 2003 and February 2005 letters from the RO to the 
claimant.  In this case, the claimant was informed of the 
duty to notify, the duty to assist, to obtain records, and 
examinations or opinions.  The claimant was specifically 
advised of the type of evidence which would establish the 
claim and the claimant was afforded additional time to submit 
such evidence.  Thus, the claimant has been provided notice 
of what VA was doing to develop the claim, notice of what the 
claimant could do to help the claim and notice of how the 
claim was still deficient.  The claimant was also provided 
notice that the claimant should submit pertinent evidence in 
the claimant's possession per 38 C.F.R. § 3.159(b)(1).  The 
claimant was advised of how and where to send this evidence 
and how to ensure that it was associated with the claim.   

Initial VCAA notification predated adjudication of this 
claim.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
 
Thus, in sum, the claimant was informed of the duty to 
notify, the duty to assist, to obtain records, and opinions.  
The claimant was specifically advised of the type of evidence 
that would establish the claim.  The claimant has been 
provided notice of what VA was doing to develop the claim, 
notice of what the claimant could do to help the claim and 
notice of how the claim was still deficient.   
 
Second, VA has a duty to assist the claimant in obtaining 
evidence necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103A.  In the instant case, VA has made efforts to develop 
the record.  VA and private medical records are of record and 
the veteran has been examined.  The records satisfy 38 C.F.R. 
§ 3.326.  The Board finds that VA has done everything 
reasonably possible to assist the claimant.  There is 
sufficient competent medical evidence of record to decide the 
claim, as set forth below.  See 38 C.F.R. § 3.159 (c)(4).   
 
Accordingly, the Board concludes it should proceed, as 
specific notice as to what evidence the claimant could or 
should obtain has been provided in effect and no additional 
pertinent evidence was submitted.  There is no indication 
that there is any additional relevant competent evidence to 
be obtained either by the VA or by the claimant, and there is 
no other specific evidence to advise him/her to obtain.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that 
both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 
C.F.R. § 3.159, clearly require the Secretary to notify a 
claimant which evidence, if any, will be obtained by the 
claimant and which evidence, if any, will be retrieved by the 
Secretary).  The claimant has had sufficient notice of the 
type of information needed to support the claim and the 
evidence necessary to complete the application.  Therefore, 
the duty to assist and notify as contemplated by applicable 
provisions, including VCAA, has been satisfied.   
 
As such, the Board finds that the development requirements of 
the VCAA have also been met.  VA has done everything 
reasonably possible to assist the claimant.  Accordingly, 
appellate review may proceed without prejudice to the 
claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

In the circumstances of this case, a remand would serve no 
useful purpose for the issues being decided.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements in the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the claimant); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only 
result in unnecessarily imposing additional burdens on VA 
with no benefit flowing to the claimant are to be avoided).  
VA has satisfied its duties to notify and to assist the 
claimant in this case.  

The Board notes that where a combat wartime veteran alleges 
he/she suffers disability due to an injury incurred in 
service, 38 U.S.C.A. § 1154(b) must be considered.  Collette 
v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 
Vet. App. 563 (1996); Caluza v. Brown, 7 Vet. App. 498 
(1995).  In this case, the veteran does not assert that 
claimed disability was incurred in combat.  Thus, 38 U.S.C.A. 
§ 1154(b) is not for application.

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  

Further, VA regulation provides that, with chronic disease 
shown as such in service (or within an applicable presumptive 
period under section 3.307) so as to permit a finding of 
service connection, subsequent manifestations of the same 
chronic disease at any later date, however remote, are 
service connected, unless clearly attributable to 
intercurrent causes.  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, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established (leprosy, tuberculosis, multiple sclerosis, 
etc.), there is no requirement of an evidentiary showing of 
continuity.  Continuity of symptomatology is required only 
where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. 38 
C.F.R. § 3.303(b).

In addition, 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).

A claim for service connection generally requires competent 
evidence of a current disability; proof as to incurrence or 
aggravation of a disease or injury in service, as provided by 
either lay or medical evidence, as the situation dictates; 
and competent evidence as to a nexus between the inservice 
injury or disease and the current disability.  Cohen v. 
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. 
App. 465 (1994).

The veteran can attest to factual matters of which he had 
first-hand knowledge, e.g., experiencing pain in service, 
reporting to sick call, being placed on limited duty, and 
undergoing physical therapy.  See Washington v. Nicholson, 19 
Vet App. 362, 368 (2005).  However, the veteran as a lay 
person has not been shown to be capable of making medical 
conclusions, thus, his statements regarding causation are not 
competent.  Espiritu v. Derwinski, 2 Vet. App. 492, 495 
(1992).  Thus, while the veteran is competent to report 
symptoms, he does not have medical expertise.  Therefore, he 
cannot provide a competent opinion regarding diagnosis and 
causation.  

Neither the Board nor the veteran is competent to supplement 
the record with unsubstantiated medical conclusions.  Colvin 
v. Derwinski, 1 Vet. App. 171, 175 (1991).  Conversely, 
health professionals are experts and are presumed to know the 
requirements applicable to their practice and to have taken 
them into account in providing a diagnosis.  Cohen v. Brown, 
10 Vet. App. 128 (1997).  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise, with 
the veteran 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 (1990).  To do so, the Board must assess the credibility 
and weight of all the evidence, including the medical 
evidence, to determine its probative value, accounting for 
evidence that it finds to be persuasive or unpersuasive, and 
providing reasons for rejecting any evidence favorable to the 
appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  

The veteran maintains that he was exposed to aircraft noise 
as well as loud gunfire during his periods of active duty.  
He states that the loud gunfire would leave his ears ringing 
for days.  

The service medical are negative for any finding, treatment, 
or diagnosis of tinnitus.  

Post-service, the veteran was afforded a VA audiological 
examination in October 2003.  At that time, the veteran 
reported being exposed to inservice acoustic trauma.  The 
audiologist determined that, if the veteran's report of noise 
exposure in service was true, it was as likely as not that at 
least some of his hearing loss resulted from his military 
service.  However, with respect to the veteran's tinnitus, 
the audiologist stated that "due to the onset and periodic 
nature of the veteran's tinnitus, it is as likely as not that 
it did not result from his military service."  The 
audiologist based her opinion on the fact that the veteran 
reported the date of onset to be 10 years prior.

The veteran has since alleged that he had tinnitus since 
service, not since 10 years ago.  

In October 2004, the veteran was afforded another VA 
audiological examination, but no diagnosis of tinnitus was 
made.  Likewise, private medical records do not reflect a 
diagnosis of tinnitus.  In April 2005, the veteran was 
afforded another VA audiological examination which was 
performed by the same audiologist as in October 2003.  At 
that time, the audiologist noted that on the October 2003 VA 
examination, the veteran reported that the onset of tinnitus 
was 10 years ago, but now he reported that the onset was 
during service.  The examiner reported that the veteran then 
attempted to malinger on his hearing test which resulted in 
the audiologist noting that she questioned the reliability of 
the veteran's statement.  The veteran indicated that there 
was no name for tinnitus 10 years before.  The audiologist 
indicated that she always asks about the type of noise, 
ringing, buzzing, crickets, or other sounds since many 
veterans did not know what tinnitus meant.  She noted that 
when a veteran reported an onset of tinnitus at any other 
time other than service, she asked what happened around that 
time which might have caused the tinnitus.  In addition to 
this question, she stated that she always has the veteran 
verify the timeframe of the onset of the tinnitus at least 
twice during the testing.  Due to the veteran's current 
change of story and malingering during the testing, the 
veteran's initial statement that tinnitus began 10 years ago, 
and the periodic nature of tinnitus, the audiologist opined 
that the veteran's tinnitus was not caused by or a result of 
his military service.  

Thus, in sum, there is no inservice diagnosis of tinnitus.  
There was no chronic disease during service.  The Board 
accepts that the veteran was exposed to loud noises during 
service.  The veteran reports that he had tinnitus since 
service which would show continuity of symptomatology.  He is 
competent  to report symptoms which come to him through his 
senses.  See Layno.  However, the veteran's statements are 
not credible in light of his inconsistent statements and the 
competent medical evidence.  The veteran initially told the 
VA audiologist that his tinnitus began 10 years ago, decades 
after service.  He thereafter changed his story to this 
examiner.  The VA audiologist, who is a medical professional, 
concluded that current tinnitus was not due to or related to 
service.  The Board attaches significant probative value to 
this opinion, as it is well reasoned, detailed, consistent 
with other evidence of record, and included review of the 
claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 
(2000) (Factors for assessing the probative value of a 
medical opinion are the physician's access to the claims file 
and the thoroughness and detail of the opinion.).

The Board affords greater probative value to the VA 
examiner's opinion than to the veteran's statements given the 
facts of this case.  His more recent statements regarding an 
earlier date of onset of tinnitus than that initially 
reported are not credible, and as such, are not probative.  
The probative evidence establishes that tinnitus is not 
attributable to service.  There is no competent medical 
evidence of record to the contrary.

Accordingly, service connection is not warranted.  

The evidence in this case is not so evenly balanced so as to 
allow application of the benefit-of-the-doubt rule as 
required by law and VA regulations.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  The preponderance is against the 
veteran's claim, and it must be denied.


ORDER

Service connection for tinnitus is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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