Citation Nr: 1035167 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 08-37 624 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to August 1980 and from May 1999 to July 1999. The Veteran also had various periods of active duty for training (ADT) and inactive duty for training (IDT) as a member of the Michigan Air National Guard (ANG). This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the RO in Detroit, Michigan. The Veteran testified before the undersigned Acting Veterans Law Judge at a May 2010 hearing that was held at the RO. FINDING OF FACT Tinnitus is not etiologically related to qualifying active service. CONCLUSION OF LAW The Veteran's tinnitus was not incurred in or caused by active service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303. (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186- 187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In March 2006 the Veteran was sent a letter that explained what the evidence needed to show in order to establish service connection for a claimed disability. The letter also described VA's duty to assist the Veteran with obtaining evidence in support of his claim. The Veteran was sent a second letter, also in March 2006, which explained the general manner whereby VA assigns disability ratings and effective dates for service connected disabilities. Both of these letters were sent to the Veteran prior to the initial adjudication of his claim. In addition to its duties to assist the claimant, VA also must make reasonable efforts to assist him or her in obtaining the evidence that is necessary in order to substantiate his or her claim for, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, lay statements, and a transcript of the Veteran's testimony at the May 2010 hearing. The Veteran was afforded a VA examination in connection with this case. For the reasons set forth above, the Board finds that VA met its obligations pursuant to the VCAA in this case. II. Service connection The Veteran contends that he has tinnitus that was caused by his military service, specifically, his exposure to jet engine noise while performing his ANG duties. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the context of Reserve or National Guard service, active military service is defined to include any period of ADT in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of IDT during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). The Veteran's entrance examination did not reflect that he had any hearing problems. Service treatment records indicate that the Veteran was in the hearing conservation program and was required to use hearing protection while performing duty. In December 1993 at his occupational physical the Veteran complained of ringing and muffled hearing after firing a firearm in November 1993 during off duty hours. A significant change in the Veteran's hearing at 6000 Hertz in the Veteran's left ear was then noted. A treatment note indicates that while the Veteran's audiogram was within normal limits he had high frequency hearing loss in the left ear that developed after firing a gun on November 15, 1993 during off duty hours. At Hearing Conservation Examinations in May 1995 and in January 1996 the Veteran denied experiencing ringing in his ears. The Veteran had a VA hearing examination in July 2007. At that time the Veteran complained of constant bilateral tinnitus. This was worse in the Veteran's left ear; tinnitus in the right ear was somewhat periodic. The Veteran described the sound as being like the buzzing of an electrical power line. He dated his tinnitus to the mid 1990s after returning from a deployment to Kosovo. The tinnitus caused the Veteran to have difficulty understanding others in competing noise and to have difficulty sleeping. The Veteran reported that he was exposed to military noise from artillery and aircraft while working as a cannon crewman and then as an aircraft mechanic in the ANG. When not performing ANG duties, the Veteran worked as a civilian ANG technician aircraft mechanic from 1989-2000 and thereafter worked in an administrative position. The Veteran denied recreational firearm use. He used hearing protection when he used power tools. The VA examiner opined that the Veteran's tinnitus occurred because of the incident when the Veteran shot firearms off duty in 1993, at which time there was also concomitant left ear hearing loss at 6000 Hertz. On his VA form 9 the Veteran contended that he was exposed to loud noise from military aircraft as part of his duties as a member of the ANG and as an ANG technician. He wrote that he denied experiencing ringing in his ears at his examinations in 1995 and 1996 because he was not experiencing tinnitus at those times because it came and went. Additionally, he was unfamiliar with what tinnitus was. A private treatment record indicates that the Veteran reported to his audiologist that he was exposed to military noise. At the May 2010 hearing that was held at the RO, the Veteran explained that the engine noises from the jet planes that he worked on in the ANG were very loud. While he usually used hearing protection, at times he removed his hearing protection in the course of performing his duties. He submitted lay statements from former co-workers who agreed that sometimes it was necessary to remove the hearing protection in order to accomplish a particular task and that, when deployed, there was not always access to hearing protection. The Veteran denied any recreational noise exposure and indicated that he had only discharged a firearm twice. Based on his years of service in the ANG, he estimated his actual time on the flight line to have totaled two years. In his testimony the Veteran dated the onset of his tinnitus to 1996 or 1997, at which time the ringing became more constant. He explained that he concealed his tinnitus from the ANG because he thought that this would influence his job assignments. He reported that he was afraid to admit to ringing in his ears because he believed that he might have been removed for duty on the flight line if that was in fact the case. However, he testified that he did have intermittent tinnitus at those times. He reiterated that jet engines are very loud. On review of the evidence above, the Board finds it is at not at least as likely as not that the Veteran's tinnitus was due to a disease or injury that occurred during his service. As noted in the introduction, the Veteran's active service was from April 1980 to August 1980 and from May 1999 to July 1999. The onset of ringing in the ears is first documented in December 1993, between the two periods of active service. The Veteran has not asserted, and the evidence does not show, that his tinnitus began during the period from April 1980 to August 1980. The Veteran denied ringing in the ears in ANG hearing conservation examinations in May 1995 and in January 1996 because, per his statements, such symptoms were recurrent rather than chronic and because he did not want to jeopardize his career on the flightline in the ANG. The Veteran testified that the current tinnitus became manifest in the period 1996-1997 when the disorder became more constant. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board concludes that any tinnitus prior to January 1996 was intermittent rather than chronic, and that chronic tinnitus began during the period 1996-1997 as per the Veteran's testimony in conjunction with the medical documentation cited above. The Veteran's active service was from April 1980 to August 1980 and from May 1999 to July 1999. Thus, onset of tinnitus during the period 1996-1997 was well outside the Veteran's active service dates and the Board must resolve whether the disorder is due to acoustic trauma during ADT or IDT. It appears from the record that the Veteran was exposed to engine noise as a civilian aircraft maintenance technician with the ANG from 1989-2000. This is a much greater window of exposure to acoustic trauma than his self-estimated two years of flight line duty associated with actual ADT or IDT. The Board notes in that regard that occupational injuries as a civilian technician with the armed services, to include the Reserve Component, are not considered to be injuries for which service connection can be granted by VA. The audiologist who reviewed the claims file opined that the off- duty firearms discharge in 1993, rather than exposure to engine noise, caused the Veteran's tinnitus because it was concurrent with a documented loss of hearing acuity, and the Veteran himself agreed at the time that the firearms discharge was the cause of the then-current ringing in his ears. There is no competent medical opinion showing etiology of tinnitus to engine noise; at any rate, the Veteran is shown to have had more cumulative exposure to engine noise in his civilian occupation than in his ADT or IDT. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for tinnitus is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs