Citation Nr: 1121879 Decision Date: 06/06/11 Archive Date: 06/20/11 DOCKET NO. 07-24 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant served on active duty from June 1974 to July 1978, and from April to June 1981. The appellant also served in the Naval Reserves from 1982 to 1988. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a May 2005 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board for further development in July 2009. FINDINGS OF FACT 1. Tinnitus was not manifest in service and is not attributable to service. 2. Tinnitus is not due to (causation or increase in severity) a service connected disease or injury. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Tinnitus is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that this case was remanded in July 2009 to afford the appellant proper VCAA notice. The record reflects that the originating agency provided the appellant with the notice required under the VCAA by letter dated in October 2009. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The Board acknowledges that the appellant has not been afforded a VA examination in relation to her claim for entitlement to service connection. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no showing that the appellant's tinnitus is related to service. In reaching this conclusion, the appellant's own lay statements were considered, but as will be explained in the body of this decision, such statements do not credibly establish a nexus between tinnitus and service. For these reasons, the evidence does not indicate that the appellant's tinnitus is attributable to service such as to require an examination, even under the low threshold of McLendon. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). 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) (2010). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). The Court has also held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006. As the amendment is restrictive, it is to be applied prospectively; it is not for application in the present claim. The Board notes that the appellant has not asserted that her disability is the result of combat. As such, the provisions of 38 U.S.C.A. § 1154 (West 2002) and the provisions of 38 C.F.R. § 3.304(f) relating to combat are not for application. Analysis The appellant has appealed the denial of service connection for tinnitus. In July 1978, when asked if she had a history of ear, nose or throat trouble, the appellant reported nose trauma. No ear trouble was reported. The ears were reported as normal. Service treatment records reveal the ears were reported normal and the appellant denied ear trouble in September 1980, December 1982, August 1983, May 1985, October 1986, and May 1988. She denied ear trouble in December 1984. She complained of bilateral ear pain and a right ear infection for two weeks in May 1981. Treatment for vertigo was noted in May 1981. Vertigo was assessed in July 1988. On March 14, 2002, the appellant complained of ringing in her ears since March 1, 2002. In her April 2007 RO hearing, the appellant stated that she had a lot of "tinnitus." She reported that she first noticed symptoms of tinnitus around 1999 or 2000. She related that she mentioned to her doctor that she had a lot of ringing in her ears. The appellant stated in August 2007 that she has had tinnitus since working on flight lines in service. She denied ear problems in October 2009. The appellant has submitted abstracts on tinnitus to include "Prevalence and Characteristics of Tinnitus Among US Adults," "Similarities between Chronic Pain and Tinnitus," and "Efficacy of Misoprostol in the Treatment of Tinnitus in Patients with Diabetes and/or Hypertension." Via various statements she has related that her tinnitus is secondary to her back pain. She has also stated that her tinnitus is secondary to her urinary problems and stress which resulted in hypertension. After review of the record, the Board finds against the claim. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he/she experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Here, we find that the appellant is competent to report noise exposure and ringing in the ears but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As explained below, we find the appellant's assertions that her tinnitus is related to service are not credible and that the more probative evidence is against the claim. To the extent that the appellant attributes her tinnitus to service, the Board finds that her assertions are not credible. In this regard, the appellant denied ear trouble throughout service and examinations in service revealed normal ears. Post-service evidence is devoid of a showing of complaints or treatment related to tinnitus following active service until years thereafter. In fact, treatment records show the first mention of tinnitus in March 2002. The Board emphasizes the multi-year gap between discharge from active duty service (1981) and initial reported symptoms related to tinnitus in approximately 2002 (a 21 year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Furthermore, we note that the appellant has rendered inconsistent statements regarding the onset of her tinnitus. At her April 2007 RO hearing, the appellant reported that she first noticed symptoms of tinnitus around 1999 or 2000. However, in March 2002 the appellant reported ringing in her ears with an onset of earlier that month. We also note that she stated in August 2007 that she has had tinnitus since working on flight lines in service. The appellant was examined during service and denied ear symptomatology during each examination. The appellant's statements showing an in service onset and continuity are conflicting with the other evidence of record to include her own statements and the in service examinations. Clearly, she is an inconsistent historian. The Board has weighed the appellant's statements and finds her current recollections and statements made in connection with a claim for VA compensation benefits to be less probative than the statements rendered for examination purposes. Such histories reported by the appellant for treatment and evaluation purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Also, to the extent that there is an assertion of in service onset and continuity, such remote lay evidence is contradicted by the more probative evidence and is not credible. We note that the appellant filed a VA disability compensation claim for service connection for respiratory problems and a back disability in September 1998 but did not claim service connection for tinnitus nor did she make any mention of any ear symptomatology. This silence when otherwise speaking constitutes negative evidence. We find it not credible that she would file a claim for other disabilities and not for ongoing tinnitus if she were experiencing continuity. To the extent the appellant has asserted that her tinnitus is secondary to her other disabilities to include low back pain, stress and hypertension. We note that the appellant is not service connected for any disability, as such the provisions of 38 C.F.R. § 3.310 are not for application. We also acknowledge that the appellant has submitted abstracts discussing tinnitus and other disabilities. However, we note that the abstracts are not specific to the appellant and the findings were not based on the appellant's particular history and circumstances. The Board notes that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, crucially, the abstracts. are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. In any event, we again note that the appellant is not service connected for any disability. In sum, the evidence deemed most probative by the Board establishes that, although the appellant has tinnitus, the disability is not attributable to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lastly, the Board notes that the record in this case reflects that the appellant was seen in service for vertigo and ear infections. However, neither the pleadings nor the facts raise a claim for service connection based on these diagnoses. The appellant has consistently claimed that she has tinnitus due to service. The evidence shows that she relates only her tinnitus, and not any of his other ear disability, to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (where a claim for service connection identifies PTSD without more, the claim is not necessarily limited to that diagnosis, but must be considered a claim for any mental disability based on analysis of the description of the claim, the symptoms the claimant describes, and the evidence of record). As such, any sub-issues regarding ear disabilities other than tinnitus are not on appeal in this case. Id. at 6 (2009) (Board erred when it failed to weigh and assess the nature of the Veteran's current condition when determining the breadth of the claim before it). ORDER Service connection for tinnitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs