Citation Nr: 1044331 Decision Date: 11/24/10 Archive Date: 12/01/10 DOCKET NO. 02-17 968A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for tinnitus, including as secondary to service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from November 1967 to June 1969. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a December 2001 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York denied service connection for bilateral hearing loss and tinnitus. In a decision issued in September 2005, the Board granted the Veteran service connection for bilateral hearing loss, but affirmed the RO's denial of service connection for tinnitus. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2006, based on a Joint Motion To Vacate In Part And Remand (joint motion), the Court issued an Order remanding the claim for service connection for tinnitus to the Board for compliance with the instructions in the joint motion. In October 2006 and December 2009, the Board in turn remanded this claim for additional development. FINDINGS OF FACT 1. Although the Board did not challenge the Veteran's credibility regarding his alleged in-service noise exposure when it granted him service connection for bilateral hearing loss in September 2005, it has since received information from the Inspector General, which establishes that his statements, including as they pertain to continuity of symptomatology, are not credible. 2. Tinnitus is not related to the Veteran's active service, including in-service noise exposure or a service connected disability. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.655 (2006 & 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO provided the Veteran VCAA notice on his claim by letter dated January 2001. The content of this letter, considered in conjunction with the content of other letters the RO sent to the Veteran in January 2005 and April 2010, the former attached to a supplemental statement of the case, reflects compliance with pertinent regulatory provisions and case law, noted above. In the letters, the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate that claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. The RO also identified the evidence it had received in support of the Veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The RO informed the Veteran of the consequences of failing to report to a scheduled examination without good cause. Notice under the VCAA must be provided to a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The RO sent two of the previously noted letters in an untimely manner. However, the RO later cured this timing defect by readjudicating the Veteran's claim in a supplemental statement of the case issued in September 2010. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2010). VA made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claim, including service and post-service treatment records. VA made a number of attempts to afford the Veteran a VA examination or obtain a medical opinion. The Board's most recent remand was to obtain a medical opinion. In December 2009, the Appeals Management Center (AMC) asked a VA medical center to arrange for the claims file to be reviewed by a VA examiner in order to obtain an opinion as to whether current tinnitus was related to service connected hearing loss, in service noise exposure, or was otherwise related to service. It was determined at the VAMC that an opinion could not be provided without an examination. An examination was scheduled for a date in February 2010, but the Veteran failed to report. A clerk at the VAMC subsequently reported that she had been in touch with the Veteran had he had expressed confusion as to whether he was actually required to report for the examination. An examination was scheduled for later in February 2010, but was cancelled due to "undelivered notification." The same clerk at the VAMC reported in March 2010, that the Veteran "could not seem to commit to coming in for an examination" and that an ear nose and throat specialist could not provide the opinion without an examination. In April 2010, the Appeals Management Center advised the Veteran that he was being scheduled for a VA examination. The examination was scheduled for a date later in April 2010, but he again failed to report. The Veteran has offered no explanation for his failure to report for the scheduled examinations. The Veteran's representative at the Board has argued that there may have been "mitigating circumstances" sufficient to good cause for the Veteran's failure to report for the VA examinations. The representative has not reported any specific reasons for the Veteran's repeated failure to report for examinations and the Board is unable to discern from the record any such reasons. Accordingly, the Board must conclude that the Veteran failed to report for VA examinations without good cause. Those examinations were necessary to determine whether current tinnitus is related to service connected hearing loss or some other disease or injury in service. The reasons why the examination was necessary were explained in the Board's previous remand, in the Veteran's conversations with the VAMC and in communications from the Appeals Management Center. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Joint Motion required the Board to consider whether service connection was warranted for tinnitus as secondary to service connected hearing loss. The record before the Board contained no competent evidence of such a connection. As noted in the Board's September 2005 decision, there was conflicting evidence as to whether the Veteran had experienced a continuity of symptomatology beginning in service. The Veteran had reported such continuity during the course of the appeal, but the record was otherwise negative for such continuity. An examination was; therefore, necessary to substantiate the claim. Where a claimant fails without good cause to appear for necessary examinations scheduled in conjunction with an original claim, the claim will be decided on the basis of the evidence of record. 38 C.F.R. § 3.655. If follows that there is no further duty to assist the Veteran in substantiating the claim. II. Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service 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 diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection is also provided for a disease or disability that is proximately due to or the result of a service connected disability, and for aggravation of a non-service connected disability by a service connected disability. 38 C.F.R. § 3.310 (2006 & 2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for tinnitus (ringing in the ears). According to statements he submitted during the course of this appeal, he developed this condition during service, when he was exposed to excessive noise at the rifle range and while serving as a radio relay operator on hilltops. He asserts that, there, he frequently heard outgoing tank fire and incoming mortar and rocket fire and began to notice ringing in his ears. A report of VA examination conducted in January 2002 confirms that the Veteran currently has tinnitus. The question is thus whether this disorder is related to the Veteran's active service, including the alleged noise exposure. The Veteran's service treatment records, including the separation examination, contain no reports of ringing in the ears. In an accompanying report of medical history the Veteran denied ear trouble. The Veteran's DD Form 214 reflects that he served in a capacity that might have exposed him to noise, as alleged. His military occupational specialty was radio relay team chief. In addition, he received sharpshooter badges in the use of M-14 and M-16 rifles, a Vietnam Campaign Medal and a Vietnam Service Medal with two overseas bars. One medical professional addressed the etiology of the tinnitus. In January 2002, during the previously noted VA examination, the examiner opined that it was not likely that the tinnitus was caused by military noise exposure. He based this opinion on service treatment records showing normal hearing bilaterally. This opinion was inadequate because it did not take into account the Veteran's reports of his symptoms and history. Dalton v. Nicholson, 21 Vet. App. 23 (2007). As previously discussed, VA attempted to obtain a satisfactory opinion, but was unable to do so . See 38 C.F.R. § 3.655 (2010) ("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.") As a result, the Veteran's assertions now represent the only evidence of record relating his tinnitus to active service. The Veteran is competent to observe and report that he first experienced ringing in his ears after he was exposed to noise in service and that the symptom had continued since then. The question becomes whether his statements in this regard are credible. In its September 2005 decision granting service connection for bilateral hearing loss, the Board found credible the Veteran's reported history of noise exposure and decreasing hearing acuity beginning in service. While the Veteran's reports of continuity with regard to hearing loss were generally consistent, that is not the case with regard to tinnitus. The reports of hearing examinations by Dr. Plasse in November 2000 and 2002 show hearing loss and the Veteran's reports of decreased hearing since 1971, but mention no history of tinnitus. In a summary provided by Dr. Plasse in November 2002, it was reported that he had treated the Veteran since 1991, and that the Veteran had bilateral hearing loss secondary to noise trauma in basic training and while serving in Vietnam. The summary makes no mention of tinnitus. At the 2002 VA examination, the Veteran did report first noting tinnitus in 1969, when exposed to tank fire; but tinnitus was not mentioned when the Veteran's medical history was recorded by other private and VA treatment providers during the course of the appeal. In March 2009 the Acting Director of the RO, reported that medical statements submitted by the Veteran in support of another claim, had been investigated by VA's Inspector General. The Inspector General had concluded that the signatures on the medical opinions were not actually those of the psychologist who had purportedly signed them. Also weighing against a continuity of symptomatology, are the service separation examination and report of medical history. The Veteran has reported that he was not permitted to voice any complaints at the time of his separation, but the report of medical history shows that he did voice complaints with regard to conditions not currently at issue. The apparent forgery, the inconsistent history, and the decades between service and the initial contemporaneous reports of tinnitus, weigh against a finding that the Veteran's reports of a continuity of symptomatology with regard to tinnitus are credible. The Board thus finds not credible the Veteran's reports f a continuity of tinnitus symptomatology that began during service. Absent credible and competent evidence of a link between current tinnitus and service, the evidence is against service connection for tinnitus on a direct basis. There is also no competent and credible evidence that the current tinnitus is secondary to (caused or aggravated by) the service connected hearing loss. The record contains no medical opinion as to the etiology of the current tinnitus. The theory that tinnitus could be secondary to hearing loss was advanced in the Joint Motion, but there is no medical evidence of such a relationship in the Veteran's case. To the extent the Veteran or his representative are advancing such a theory, they lack the medical expertise to provide a medical opinion as to the etiology of the current tinnitus. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a Veteran's assertion that one condition was cause by another was insufficient to trigger VA's duty to provide an examination). The Veteran has not reported that hearing loss aggravated the tinnitus and there is no other evidence of such aggravation. Indeed, in this case, VA medical professionals determined that they could not provide an opinion on secondary service connection without an examination. If the medical professionals could not provide such an opinion without examining the Veteran, a lay person, such as the Veteran, would clearly lack the competency to provide that opinion. As a final matter, the Board notes that the Veteran has described himself as participating in combat and some of his reports could be construed as reporting noise exposure in combat. Under the provisions of 38 U.S.C.A. § 1154(b) (West 2002), where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. Competent and credible evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). In this case, as just discussed there in no competent and credible evidence of a link between current tinnitus and service. The provisions of 38 U.S.C.A. § 1154(b), cannot; therefore, serve as the basis for establishing service connection for tinnitus. Inasmuch as there is no credible and competent evidence relating the Veteran's tinnitus to active service, including the in- service noise exposure and service connected hearing loss, the preponderance of the evidence is against the claim. The benefit- of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for tinnitus is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs