Citation Nr: 0725578 Decision Date: 08/16/07 Archive Date: 08/22/07 DOCKET NO. 06-10 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral 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 June 1943 and November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2007, the Board remanded this case. FINDING OF FACT There is no post-service diagnosis of bilateral tinnitus. CONCLUSION OF LAW Bilateral tinnitus was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A letter dated in April 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the notification letter was not sent prior to the initial adjudication of the claimant's claim, this was not prejudicial to the claimant since the claimant was subsequently provided adequate notice and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided in May 2007. If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, No. 2006-7092 (Fed. Cir. May. 16, 2007); see also Sanders v. Nicholson, No. 2006- 7001 (Fed. Cir. May. 16, 2007). In this case, the claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice came after the initial adjudication, there is no prejudice to the claimant. See Overton v. Nicholson, No. 02- 1814 (U.S. Vet. App. September 22, 2006). The veteran's representative has pointed out that although the veteran had up to one year to submit evidence, the SSOC was issued prior to that time. However, a review of the VCAA notice reveals that the veteran was informed that VA may decide his claim within 60 days if all attempts to get all relevant evidence about which VA knows were completed. He was informed further, that he could still have the remainder of the year to submit evidence even if the claim was decided sooner. Post-service medical treatment records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in April 2005. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The Board notes that efforts were made to obtain the veteran's service medical records, but they were destroyed in a fire. When a veteran's service records are unavailable, the VA's duty to assist, the duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran was also sent a letter regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection for Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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. § 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). 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 service medical records, as noted, are unavailable for review. With regard to tinnitus, the veteran's statements consist of the following, "I disagree with VA rating decision dated 12/14/2005 which denied my claim for hearing loss and tinnitus." He went on to state that he had inservice noise exposure during his combat service. He did not make any specific comments as to the nature of any past or current tinnitus. Other correspondence of record from the veteran addresses inservice noise exposure and hearing loss, only. 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 what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the United States Court of Appeals for Veterans Claims (Court) indicated that varicose veins were a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The current issue, service connection for hearing loss, would come within the parameters of a diagnosis which the veteran is competent to describe. However, the veteran has not specifically made any statements regarding whether he had ringing in his ears during or post-service. In April 2005, the veteran was afforded a VA examination. The claims file was reviewed. The VA audiologist noted that the veteran had an inservice history of noise exposure as he was exposed to big guns, 30 caliber rifles, and artillery. The veteran also had a civilian work history from 1941-1984 as a precision machinist tool and die maker where no ear protection was used. The audiologist noted that there were no service medical records to review. The audiologist indicated that tinnitus was not present. No diagnosis of bilateral tinnitus was made. Likewise, on another VA April 2005 VA examination and in private medical records, there are no complaints or diagnoses of tinnitus. In sum, there is no competent evidence that the veteran has bilateral tinnitus which is directly related to service. In fact, the current VA examination reflects that the veteran does not have bilateral tinnitus. 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 Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); see also Gilpin. I In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. See Rabideau. Absent a current diagnosis, service connection is not warranted. There is no current diagnosis in this case. Accordingly, service connection is denied. ORDER Service connection for tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs