Citation Nr: 0815063 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-10 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from October 1956 to October 1958. This appeal to the Board of Veterans Appeals (Board) is from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDING OF FACT The most persuasive evidence of record indicates the veteran did not experience tinnitus during service or for many years after his discharge, and that his current tinnitus is unrelated to his military service - including noise exposure. CONCLUSION OF LAW The veteran's bilateral tinnitus was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claim file reveals compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq (West 2002 and Supp. 2007). See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The duty to notify was accomplished by way of a VCAA letter from the RO to the veteran dated in January 2005. The RO issued that letter before initially adjudicating his claim in the March 2005 decision on appeal. That January 2005 letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by informing the veteran of any information and evidence not of record: (1) that is necessary to substantiate his claim; (2) that VA will seek to provide; (3) that he is expected to provide; and (4) asking that he provide any evidence in his possession pertaining to the claim. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). It equally deserves mentioning that a more recent March 2006 letter from the RO further advised the veteran that a downstream disability rating and an effective date will be assigned if service connection is granted. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And after providing that additional VCAA notice, the RO subsequently went back and readjudicated his claim in the September 2006 supplemental statement of the case (SSOC) - including addressing any additional evidence received in response to that additional notice. This is important to point out because the Federal Circuit Court and Veterans Claims Court have recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). So the timing defect in the notice has been rectified. It follows that a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is simply not warranted here. Furthermore, to the extent it could be argued that there was a timing error, overall, the veteran was afforded a meaningful opportunity to participate in the adjudication of his claim. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). And as for the duty to assist, the RO obtained the veteran's service medical records (SMRs) and arranged for a VA examination in February 2005. Therefore, the Board is satisfied the RO has made reasonable efforts to obtain any identified medical records. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), in a disability compensation (service connection) claim, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). There is sufficient evidence already on file to fairly decide the veteran's appeal, such that another VA examination would serve no constructive purpose. See, e.g., Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The existence of a current disability and indications of acoustic trauma during service are acknowledged. His claim, however, is deficient in establishing the required etiological link between his current tinnitus and his in-service injury. The rather recent February 2005 VA compensation examination addressed this determinative issue, and the medical nexus opinion obtained from that evaluation unfortunately was unfavorable. So there is more than enough competent medical evidence already of record to decide his claim on appeal. Therefore, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Service Connection for Tinnitus Service connection is granted if it is shown the veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d) (2007); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disorder also may be service connected if the evidence of record reveals the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), 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." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, 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, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumption period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. at 494- 97. 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 (about evenly balanced for and against the claim), with the veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Analysis The veteran's current bilateral tinnitus disorder was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). The veteran asserts that his tinnitus is attributable to "extreme noise exposure" from weapons trainings that he both engaged in and supervised during his military service. He said that he fired, and stood directly next to others who fired, assorted weapons, including machine guns and rocket launchers, for eight to ten hours per day. And he adds that he did not have hearing protection while exposed to noise levels he estimates at 155 to 180 decibels. He also says his tinnitus has persisted since service. See his January 2005 claim (VA Form 21-526), April 2005 notice of disagreement (NOD), and March 2006 substantive appeal (VA Form 9). As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is proof of the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Two audiologists have noted current periodic tinnitus in both ears, as recorded in the respective findings of the January 2005 private audiological examination by Mr. A., and the February 2005 VA audiological compensation examination. Thus, there is no disputing the veteran currently has tinnitus. Consequently, the determinative issue is whether this condition is somehow attributable to his military service - and, in particular, to the noise exposure, i.e., acoustic trauma, he mentions. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). But as for evidence of this condition during service, a review of the veteran's service medical records (SMRs) shows no mention of any complaint, treatment, or diagnosis of bilateral tinnitus while in the military. Tinnitus, however, is the type of subjective symptom capable of lay observation. So his assertions of experiencing "extreme noise exposure" while undergoing and supervising weapons training may provide satisfactory lay evidence of service incurrence of acoustic trauma, especially as this is supported by three consecutive treatments for acute pain and inflammation of his left eardrum in August 1958. The fact remains, though, that none of the veteran's service medical records makes any reference to tinnitus, such as ringing, buzzing, roaring, or clicking in either ear. He also had normal hearing throughout his period of service, including at the time of his separation examination in October 1958. The lack of a hearing loss disability in service is significant because, although hearing loss and tinnitus are separate disabilities, medical treatises indicate the cause of tinnitus can usually be determined by finding the cause of the associated hearing loss. See, e.g., Harrison's Principles of Internal Medicine 178 (Anthony S. Fauci et al. eds., 14th ed. 1998). The lack of complaints of tinnitus and the lack of objective evidence of hearing loss during service provide highly probative evidence against the claim. See Struck v. Brown, 9 Vet. App. 145, 147 (1996). Consequently, even considering the evidence of in- service acoustic trauma, there is no indication the veteran had complaints of tinnitus while in service, as a consequence of that trauma, or the he received a diagnosis of this condition at any time while in service. Indeed, the record shows that the first documented complaints of tinnitus were not until a January 2005 private audiological examination, nearly half a century after the veteran's separation from active duty. This 47-year lapse between service and the first documented complaints of tinnitus provides compelling evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability). There is also competent medical evidence of record discounting any notion that the veteran's current tinnitus is related to or dates back to his military service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Specifically, the February 2005 VA compensation examiner determined the veteran's current tinnitus is not as likely as not caused by military noise exposure. This opinion against establishing nexus is entitled to a lot of probative weight because it is based on a personal examination of the veteran and independent review of the record. It therefore has the proper factual foundation. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 7 Vet. App. 429 (1995); and Swann v. Brown, 5 Vet. App. 229, 233 (1993). And despite noting the veteran's reports of occasional bilateral tinnitus, the January 2005 private audiological examination report from Mr. A. found that the veteran's noise exposure during his military career was insufficient "to cause a marked hearing problem." This is further evidence against his claim, especially since the February 2005 VA examiner was able to review the January 2005 private examination finding before making a conclusion on the etiology of the veteran's current bilateral tinnitus disorder. The Board is mindful of the conflicting opinion of the June 2005 Veterans Service Office private physician, Dr. W., who opined that the veteran's noise exposure in the military is "more likely than not" the "primary factor" in causing a current problem of ringing in his ears. As a whole, the Board finds that this latter opinion is entitled to limited probative weight as the facts in this case do not support Dr. W.'s finding. The VA compensation examiner's opinion to the contrary is simply more probative and credible. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens, 7 Vet. App. at 433. The VA compensation examiner conducted a comprehensive audiological examination of the veteran to determine the etiology of his bilateral tinnitus disorder. This included a thorough interview and physical audiology examination. The VA compensation examiner reviewed the veteran's claim file, but apparently did not have the veteran's service medical records (SMRs) available in the C-file to review. However, the VA compensation examiner did have available to him to in the C-file all documented post-service complaints, treatments, and diagnoses for the veteran's bilateral tinnitus disorder, which significantly only began the prior month, in January 2005. Indeed, the veteran himself admitted that the onset of his tinnitus disorder was 10 years prior to that examination, which, if indeed true, would date back to approximately 1995, still nearly 37 years after separating from the military. A reference to his work in the construction industry for 30 years, which he contests due to his office-setting work in the industry, did not appear to be as crucial to the finding as his long absence of any treatment history and late post-service onset. See his NOD dated in April 2005 and his substantive appeal dated in March 2006. Thus, there was more than adequate basis for the VA compensation examiner to make the negative opinion as to nexus to military service. In contrast, Dr. W. appears to have issued a somewhat speculative opinion of a nexus to service based primarily, if not solely, on the veteran's reported histories in his January 2005 claim's supporting statement and his April 2005 NOD. Dr. W., unlike the VA compensation examiner, did not appear to perform a thorough interview of the veteran. However, he did note that the January 2005 private audiology examination had shown high frequency loss. Aside from those few noted documents, it appears Dr. W. was unable to review the veteran's entire claim file. Like the VA examiner, Dr. W. also did not personally review the veteran's SMRs, indicating, instead, that he had reviewed the veteran's narrative of his military history as reported on statements in support of his claim (i.e., VA Forms 21-4138) dated in January and April 2005. Dr. W acknowledged that the veteran's advanced age may be a contributing factor in his current hearing loss, and presumably his tinnitus as well, although also noting that noise exposure in the military was the primary factor. The Court has held that VA cannot reject a medical opinion simply because it is based on a history supplied by the veteran, and that the critical question is whether that history was accurate and credible. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) and Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). The holdings in these cases were partly in response to the prior holding in LeShore v. Brown, 8 Vet. App. 406, 409 (1995), indicating that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. Here, Dr. W. relied on the veteran's self-reported history in his January and April 2005 statements in support of his claim, alleging that his hearing had progressively deteriorated since leaving the military. But this assertion, which also alleges that his tinnitus has been a problem since separating from the military in 1958, is simply not credible because there is no documented history of post-service complaints or treatment for tinnitus for nearly half a century after his discharge from the military. And the veteran's statements concerning the onset of his tinnitus are inconsistent. In fact, he admitted to the VA compensation examiner that the onset of his tinnitus was not until approximately 1995, although he indicates in his claim that he has had ear impairments since his separation from service. Therefore, the Board does not find this nexus opinion from Dr. W. to be competent and credible in that the record evidences no complaint, diagnosis, or treatment of bilateral tinnitus either in service or until some 47 years after service, until January 2005. See again Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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 also 38 C.F.R.§ 3.159(a)(2). So all this considered, the Board finds that the June 2005 opinion of Dr. W. is of limited probative value compared to the February 2005 VA compensation examiner's opinion to the contrary. Further, there is also no alternative basis for a nexus in the form of evidence of a chronic disorder in service or any continuity of symptomatology after service. See 38 U.S.C.A. § 1112; 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494- 497. Again, there is no history of complaint, treatment, or diagnosis of the veteran's current bilateral tinnitus disability either in service or for many years after. Overall, the evidence of record does not support his claim. Unfortunately, the veteran's contentions in support of his claim are significantly outweighed by the medical evidence of record, which shows that he first reported tinnitus nearly half a century after service. Barr, 21 Vet. App. at 305. Accordingly, the Board finds that the preponderance of the evidence is against service connection for bilateral tinnitus, so there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral tinnitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs