Citation Nr: 0811407 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-31 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from October 1962 to June 1971 during which time he had two tours of Vietnam. He was born in 1945. This appeal to the Board of Veterans' Appeals (Board) is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran asked for and was scheduled for a Travel Board hearing in February 2008, for which he failed to appear. Service connection is in effect for bilateral defective hearing, for which a 10 percent rating is assigned. A permanent and total rating for non-service-connected disability pension purposes is also in effect. FINDING OF FACT The competent and probative evidence of record preponderates against a finding that the veteran has tinnitus which is either of service origin or is proximately due to or the result of his service-connected hearing loss, on either a causation or aggravation basis. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service, and is not due to, the result of, or aggravated by service-connected hearing loss. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 &West Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). The veteran filed his claim for service connection in May 2004; a letter was sent to him in June 2004 relating to requirements to support his claim. Extensive records were obtained from facilities wherein he had been seen, as stated by him. A rating action in September 2004 denied the claim. Additional records were obtained including a VA examination and opinion. A rating action in July 2005 granted service connection for his defective hearing and continued to deny the tinnitus claim. He filed a Notice of Disagreement (NOD) on the tinnitus issue in August 2005. Throughout, extensive development was undertaken and correspondence sent to the veteran with regard the requirements to support his claims and related matters. The VARO sent him explanatory letters, and an SOC and SSOCs were issued and additional correspondence was sent to the veteran, including a letter containing information mandated by Dingess, in March 2006. He timely filed a Substantive Appeal on a VA Form 9 in September 2005. In the aggregate, the Board finds that the RO has satisfied the duty to notify and assist under the VCAA. The Board finds that the content of letters and other communications complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Any other defect with respect to timing was harmless error. See Mayfield, supra. He was advised of his opportunities to submit additional evidence after which additional data was obtained and entered into the record. The Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He has submitted additional data, and has indicated that he has no other information or evidence to substantiate the claim. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of the current appeal. Neither has he suggested in any way that there is any prejudice due to a lack of proper VA notice or assistance. He has asked for another VA examination, which the Board does not find is necessary, for reasons which will be discussed below. In the aggregate, the veteran has demonstrated actual knowledge of and have acted on the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Any presumption of error as to VCAA notice has been rebutted in this case. See Sanders, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development on this issue. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Applicable Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). With chronic disease shown as such in service 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. 38 C.F.R. § 3.303(b). 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). In addition, certain diseases, such as organic diseases of the nervous system, (e.g., tinnitus), may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When service connection is thus established for a secondary disorder, the secondary condition is considered a part of the original disability. Any increase in severity of a non-service-connected disorder which is proximately due to or the result of a service- connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310, above, the regulation which governs claims for secondary service connection, was amended during the pendency of this claim and appeal. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (now codified at 38 C.F.R. § 3.310(b)(2007)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in the present appeal. The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). The Board is not competent to supplement the record with its own unsubstantiated medical conclusions, but must, where necessary, refer to competent medical authority. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Similarly, it is well established that while someone who is a layperson is not considered capable of opining on matters requiring medical knowledge, they are permitted to provide observations. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu, supra. However, as noted above, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the Court has specifically held that tinnitus is a condition which is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein). The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons or bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Factual Background and Analysis The veteran had active service from October 1962 to June 1971, during which time he had two tours in the Republic of Vietnam. His primary MOS's were as a steward and cook; he earned the Sharpshooter (Rifle, M-1) and Marksman (Rifle, M- 14) badges. He was undoubtedly exposed to some acoustic trauma. Service records show neither complaints nor findings of tinnitus. Post-service clinical records make no mention of tinnitus until the veteran's initial claim for compensation benefits in 2004. One mental health evaluation and status report in 2004 referred to his having memory problems and having had a head injury after service, some 20 years ago during a robbery. Social Security Administration records are in the file, and do not mention tinnitus as a result of service. He was seen for a clinic visit in February 2005 for impacted cerumen in the left ear, which was removed without untoward results. On VA examination in April 2005, the veteran reported that he had experienced a gradual decline in hearing since service. He explained that he had been exposed to artillery fire, aircraft engine noise, and gunfire when flying supplies (including on noisy helicopters on several occasions) to ground troops in service. He said he had also been exposed to noise in construction work after service, during which time he only occasionally used hearing protection. He now had ringing in his ears about 2-3 times a year during the summertime, in conjunction with allergy symptoms. The examiner opined that the tinnitus was rare; and that the ringing in his ears was not likely due to military noise exposure. In his NOD, the veteran reported that the VA examiner misunderstood him in that what he had intended to say was that he had worsening of the tinnitus 2-3 times a year, not that he just had it only during the summer months. He argued that a new examination should be undertaken due to that misunderstanding, and opined that he could not understand how his tinnitus was not connected with his noise exposure in service. In his Substantive Appeal, he argued that, since the examiner made a mistake on the examination, e.g., misunderstood his comment with regard to the current nature of his tinnitus history, a new examination should be obtained. In assessing the veteran's claim for service connection for tinnitus, it is acknowledged that he had some noise exposure in service, and this is recognized in the grant of service connection for his hearing loss. However, there is no in- service evidence of tinnitus, nor were there complaints of tinnitus for decades after service. And while tinnitus is a condition subject to lay observation, that is not the same as saying that it may be subject to lay diagnosis or opinion as to its causation. There is no medical opinion of record to support his assertion in that regard. Any alleged error by a VA examiner in not accurately identifying the specific nature of the current tinnitus is not an error in a medical sense, but simply a variant of the description of current symptoms. It is not pivotal to the critical element important herein, namely the etiology thereof. Regardless of the nature of his current tinnitus, including as described on VA examination or as otherwise clarified and characterized by the veteran himself, it is not an element which is necessarily pertinent to such a diagnosis. A new examination would not alter either, would not provide additional information other than what is already of record, and is not necessary. However, for purposes of this decision, the Board certainly recognizes the validity of the veteran's observation and his several statements as to what he intended to be the description of his current tinnitus symptoms. It is significant to note that not only did the recent VA examiner specifically opine that the veteran's currently claimed tinnitus is not due to military noise exposure, but there are several equally if not more viable alternative bases for post-service incurrence of the disability for which there is corroborative objective data in the file, e.g., head injury, post-service construction noise exposure, and association with allergies. There is no reason to re-examine the veteran in such a case as this, where the medical foundation of record is entirely adequate to render a judgment. As noted above, a new examination would not provide any edifying factual basis since the fact or current character of his tinnitus is not the issue but rather its causal relationship to service or to his recognized hearing loss. And in any event, there is no sound, credible medical basis for associating the tinnitus either with service or with the service-connected hearing loss. The evidence in that regard is not equivocal, and a reasonable doubt is not raised to be resolved in the veteran's favor. Service connection for tinnitus is denied. ORDER Service connection for tinnitus is denied. _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs