Citation Nr: 0720547 Decision Date: 07/10/07 Archive Date: 07/18/07 DOCKET NO. 03-01 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from February 1969 until December 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2001 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This case was remanded twice to the RO, in September 2004 and February 2006, for additional development, the case has been returned to the Board for further appellate review. The veteran requested a Travel Board hearing, which was scheduled for January 2007. The record indicates that the veteran failed to appear for his hearing. Because the veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d). FINDING OF FACT Tinnitus was not manifested in service and is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in April 2001, November 2004, and February 2006. Additionally, the RO sent a letter to the veteran, dated in March 2006, providing information concerning the assignment of a disability rating and an effective date for benefits should service connection be granted, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have not made the RO or the Board aware of any supporting information not in the record of evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Merits of the Claim Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, the record indicates that the veteran served honorably in combat and was awarded numerous medals associated with his service, including a Combat Infantryman's Badge. When considering a claim of a veteran who has engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of in-service occurrence or aggravation of such injury or disease. The fact that there is no official record of such in-service occurrence or aggravation in such service is of no consequence, so long as the evidence is consistent with the circumstances, conditions, or hardships of such service. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b). The phrase "engaged in combat with the enemy" requires that the veteran have personally taken part in a fight or encounter with a military foe or hostile unit of instrumentality. The phrase does not apply to veterans who merely served in a general "combat area" or "combat zone, but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (Oct. 18, 1999). The veteran claims he has tinnitus from his exposure to the loud noises associated with his exposure to mortar attacks and explosions during combat. Since the veteran served in combat, his claimed noise exposure will be accepted as an in- service occurrence. The remaining question is thus whether there is a present disability that has a medical nexus to the in-service occurrence. The veteran's service medical records do not note any complaints in relation to the veteran's ears, including to tinnitus. No other medical records are in evidence referencing the veteran's claimed tinnitus. The Board notes that VA has made two attempts to obtain medical nexus evidence for the veteran's claim. After the veteran's case was remanded in September 2004, the RO requested a VA audio examination for the veteran in December 2004. The record associated with the exam notes that the veteran reported to the VA medical center late for the appointment, told the clerk that he did not want the appointment, and left without seeing an examiner. After the February 2006 remand, the RO requested another VA audio examination for the veteran, which the veteran cancelled in May 2006, due to transportation difficulties. The veteran did not schedule another VA examination, even though the RO informed the veteran in the May 2006 supplemental statement of the case that another examination could be scheduled if the veteran would let the RO know that he was willing to report. The law provides that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The veteran's unwillingness to report for scheduled VA examinations or to otherwise cooperate in the development of the claim results in evaluation of the appeal based on the evidence of record. There are no medical records in evidence that the veteran has been diagnosed with tinnitus. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because there is no proof of a present disability, service connection for tinnitus is not warranted. Even assuming a present disability were established, service connection is not warranted because there is no medical nexus between any present disability and service. No medical records are in evidence attributing tinnitus to service as opposed to any other causes. Clyburn v. West, 12 Vet. App. 296 (1999) (In a claim of service connection by combat veteran, the Board's failure to discuss the provisions of 38 U.S.C.A § 1154(b) was held to be non-prejudicial error, because, assuming the veteran had the in-service experience described, no medical nexus evidence had been obtained linking the current knee disorder to any incident of military service); Boyer v. West, 11 Vet. App. 477 (1998); Wade v. West, 11 Vet. App. 202 (1998) (Both holding that 38 U.S.C.A §1154(b) does not relieve the veteran of submitting competent medical evidence suggesting a nexus between the current disorder and the claimed combat service); Huston v. Principi, 18 Vet. App. 395 at 402 (2004) (Same proposition applied in context of clear and unmistakable error analysis). The only evidence of record establishing veteran's tinnitus and connecting it to his time in service is the veteran's claim. Although the veteran can provide testimony as to his own experiences and observations, the factual questions of whether the veteran's claimed disorder can be attributed to his inservice experiences and injuries are medical questions, requiring medical experts. The veteran is not competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The veteran does not have the requisite special medical knowledge necessary for such opinion evidence. When the weight of evidence supports a claim or an approximate balance between positive and negative evidence regarding a material issue, the veteran shall prevail or have the benefit of the doubt on that issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). 38 U.S.C. 5107(b). 38 C.F.R. § 3.102. As the evidence of record is against the veteran's claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1991). The claim is denied. ORDER Service connection for tinnitus is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs