Citation Nr: 1134819 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-04 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the above claim. In October 2010, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. In February 2011, the Board remanded the present matter for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT There is no competent medical evidence of record showing that tinnitus was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Post-service medical treatment records show that the Veteran had been diagnosed as having tinnitus. Therefore, the first requirement for service connection for this claim, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. Tinnitus is a condition under case law, where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Although the Veteran is competent to say that he has tinnitus (thus, it was "noted" during service), he is not competent to provide a medical nexus opinion between his tinnitus and an event of service origin. In a December 2007 rating decision granting service connection for bilateral hearing loss, the RO noted that the Veteran had mild hearing impairment on entrance into service and there was a 10 decibel shift at 4000 Hertz at separation. Service treatment records show that the Veteran had high frequency hearing loss on separation, which was not considered disabling, but they were silent for any findings or treatment of an ear disorder related to tinnitus. The report of a separation examination noted the Veteran's ears to be otherwise normal. With regard to continuity of symptomatology, the Veteran reported in his application for benefits that the date of onset of his tinnitus was in 1992. Physical examinations conducted by his employer, the University of California Davis, dated in the early 1980s reveal that the Veteran had hearing loss; no complaints or findings related to tinnitus were noted. In a December 1995 letter from the Veteran's employee health services, the Veteran was noted to have changes in his audiogram since the early 1980s that suggested noise induced hearing loss. In a January 1996 audiologic evaluation, the Veteran reported that he was uncertain whether he had tinnitus, but noticed a questionable faint buzzing or ringing noise that began about three or four months before. The Veteran did mention that there were a few incidents where he fired a high powered weapon that left him with tinnitus, but it is unclear whether this was during service and it was not shown to be constant. During the March 2011 VA examination, the Veteran stated that he could not tell when his tinnitus began. The first record of any complaints relating to tinnitus was during the January 1996 evaluation during which he reported buzzing or ringing for three or four months, which is approximately 25 years following service. Even if the Board assumed that tinnitus began in 1992 as the Veteran initially claimed, that is still about 22 years following separation. The evidence of record does not show, nor does the Veteran assert, that his tinnitus began before 1992. The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the Veteran was provided audiologic examinations in December 2006 and March 2011, in which the examiner opined that the reported tinnitus was not due to military noise exposure. At the December 2006 examination, the examiner stated that the Veteran's currently diagnosed hearing loss and tinnitus were less likely than not due to military noise exposure and more likely that not a result of a preexisting condition aggravated by 30 years of occupational noise exposure. The Board found that opinion inadequate because the examiner did not include a rationale for the opinion. In a March 2011 opinion obtained pursuant to the Board remand, the same examiner provided another opinion stating that tinnitus is less likely as not caused by or a result of noise exposure in service. As a basis for the opinion, the examiner stated that prior to 1996, the Veteran did not complain of tinnitus. In addition, although he stated during the 1996 evaluation that he remembered episodes of tinnitus after being exposed to high powered weapon fire, he was not even sure if he was suffering from tinnitus and the onset of tinnitus was three or four months prior. The examiner also noted that the Veteran had a large amount of occupational noise exposure. The Board notes that the examiner stated that the etiology of the tinnitus could not be determined without resorting to speculation; however, the examiner did in fact provide an opinion and provided supporting rationale based on the evidence of record. Therefore, the Board finds that as the opinions were based upon review of the claims file and a physical examination, they are found to be persuasive. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). During the October 2010 hearing, the Veteran stated that his post-service noise exposure was not as severe as his inservice noise exposure. He stated that the majority of his post-service work at the University of California Davis was not around loud equipment and he was around loud noises about 10 percent of the day as most of his day was occupied by paperwork, visiting different facilities, or bench work. He stated that he used ear protection on some jobs. During service, however, he worked on jet engines without proper ear protection. The Board finds that the Veteran's more recently-reported history of inservice and post-service noise exposure is inconsistent with the other lay and medical evidence of record. Indeed, while he asserts that post-service noise exposure was minimal, in the more contemporaneous medical evidence the Veteran clearly had significant noise exposure in his post-service employment. In a December 1995 medical report of occupational injury or illness, the Veteran complained of having significant job noise for years and chronic decreased hearing. Objective findings showed bilateral sensorineural hearing loss with change (acceleration) since baseline in 1981 to 1983. The Veteran was diagnosed as having probably occupational hearing loss. It was noted that there was a possible component from home and prior noise exposure. In addition, the January 1996 private audiologic evaluation revealed that the Veteran had significant noise exposure during the past 21 years employed at the University of California Davis. It was reported that the first 8 years he worked without ear protection in a noise environment for four hours a day using routers, sanders, grinders, a drill press, lathes, mills, and table saws. For the next 13 years he worked in a heavy noise environment around air compressors and air bleeding noises from tanks, in addition to using grinders, a drill press, air conditioning fans, and exhaust fans. He stated that it was noisy approximately four hours a day and he used very little ear protection unless he was around the air compressor or air bleeding out of the tanks. Noise exposure outside of work included using a .12 gauge and .410 in a right-handed manner that he fired 10 to 12 rounds a year for perhaps 3 or 4 years. He recalled that a few incidents where he fired a high powered weapon that left him with tinnitus. His military service was also mentioned and he reported qualifying with a weapon using a .45 with ear protection and working around jet engine noise. He also had noise exposure early in life to some farm equipment and had used a saw and lathe at home. In reviewing the Veteran's audiological results, which showed bilateral moderately severe to severe high frequency sensorineural hearing loss, it was noted that the Veteran had gun exposure as a right-handed rifle shooter. Although it was noted that the Veteran had noise exposure prior to his employment at the University of California Davis, which included service, the record clearly shows that the Veteran had significant noise exposure following service. The Veteran's reported history of occupational noise exposure at the time of private report of occupational injury or illness and audiological evaluation is more contemporaneous, so is of more probative value, than the more recent assertions made many years later. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Finally, following a careful review of the entire claims file and considering the probative value of the evidence of record, including the Veteran's lay statements, private treatment records, and VA examinations, the Board finds that there is no competent medical evidence of record showing that the Veteran's tinnitus had its onset during active service or is related to any in-service disease or injury. Significantly, private medical treatment records make no mention of any link between this condition and service. Therefore, the Veteran's claim for service connection for tinnitus must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in August 2006. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs