Citation Nr: 1110244 Decision Date: 03/15/11 Archive Date: 03/30/11 DOCKET NO. 09-28 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from Mach 1976 to March 1980. His military occupational specialty was as an infantryman. His service personnel records (SPRs) reflect that additional assignments were as an ammunition bearer, gunner, and auto rifleman. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDING OF FACT Tinnitus was not manifested in service, and the preponderance of the evidence is against a finding that such disability is related to service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a July 2008 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claim. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, a VA examination, and statements from the Veteran. He has submitted medical information (obtained from the internet) regarding tinnitus and its causes. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the July 2008 letter mentioned above. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010). 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) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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. 38 C.F.R. § 3.303(b) (2010). This rule does not mean that any manifestations in service will permit service connection. To show 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 a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). 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); 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. Background It is the Veteran's contention that he has hearing loss and tinnitus of service origin. Specifically, he asserts that in his military occupation as a gunner, he was exposed to loud noises on firing ranges and from the testing of weapons. In particular, he recalls that he did tell his squad and team leaders during tactical live fire exercise and combat simulation training that he had ringing in the ears. He did not wear hearing protection during this training as it was necessary to hear verbal commands for safe participation in the exercise. The Veteran noted that his inservice tinnitus was temporary in nature. (See the Veteran's August 2009 statement.) The service treatment records (STRs) are negative for report of, treatment for, or diagnoses of tinnitus. They do reflect that the Veteran was seen on one occasion during service for a head injury contusion (in 1976). No residuals of this head injury were noted during service, to include at time of service separation in January 1980, when a history of concussions (in 1967, prior to service) and 1976 was reported. At that examination, when reporting medical history, he had no complaints of ear problems or trouble and evaluation was normal. He filed a claim for VA disability in 1980. The claim did not include reference to tinnitus. Post service records are negative for report of hearing loss until July 2008 when the Veteran filed a claim for service connection for the condition. He reported that the disorder had been present since 1977. Upon VA audiological examination in June 2009, the examiner, who reviewed the claims file, noted that the Veteran was exposed to excessive noise from firearms, mortars, and munitions during service. The Veteran reported temporary ringing in the ears and hearing loss during service. As to the tinnitus, the Veteran reported that it was bilateral in nature and described it as low intensity "high pitched whining." He noticed it 6-12 times per day. While it was not distracting during the day when he was busy, it bothered him at night when he was in a quiet environment. It was reported that he first noted it a few years earlier. As to etiology of tinnitus, the examiner noted that as there was no evidence of tinnitus until approximately 25 years after service, it was not likely that this current tinnitus was related to military noise exposure. The examiner also noted the Veteran reported the onset in the last few years. Analysis The evidence clearly establishes that the Veteran has tinnitus. As noted above, at the 2009 examination, he recently reported that it began several years ago. The question that remains is whether such disability is related to his military service. On his claim seeking compensation he has noted it was present since 1977. In the instant case, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for tinnitus. The Board acknowledges that the Veteran's account of his inservice noise exposure is consistent with his military occupational specialty. However, there is no indication of any hearing problems, to include tinnitus in his STRs. While he was seen for a head injury (contusion) during service, there were no residuals of this injury noted, to include at the time of service separation examination in 1980. Significantly, he denied any problems with his ears, or any history of ear trouble during service at the medical history for separation and clinical evaluation was normal. The Board also notes that there is no competent medical evidence on file of tinnitus until the Veteran reported it upon exam in 2009. At that time, he reported that it had been present for several years. Thus, no clinical evidence of tinnitus is shown until at least 25 years after service separation. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a Claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Moreover, the VA examiner, who reviewed the entire claims file and examined by the Veteran in June 2009 opined that it was less likely that inservice noise exposure from so many years earlier, played a part in the development of and tinnitus approximately 25 years later. The Veteran has contended that he has been bothered with ringing in the ears since service. It is considered significant that he did not make mention of this condition at the time that he filed his original claim in March 1980. His original claim was for the above mentioned head injury residuals, classified as residuals of contusion of the head and neck, for which service connection was denied. Moreover, at the recent audiological exam, he gave a history of tinnitus for the last several years. This is more credible, it is considered unlikely that, had he been bothered since service that he would have waited so long to seek treatment or to file a claim. Thus, his report of tinnitus existing since service is not credible. As to the materials of record obtained from the internet and submitted by the Veteran regarding inservice noise exposure and/or head injury and the propensity to develop tinnitus, the Board has acknowledged that the Veteran was exposed to excessive noise during service. His claim fails, however, because in the instant case, competent medical evidence does not show that his current tinnitus, first medically shown over 25 years after service, is of service origin. Moreover, it is pointed out that internet submissions do not pertain to the medical issues at hand, and they are very general in nature and do not address the specific facts of the Veteran's claims before the Board. As this generic evidence regarding noise exposure/head injury and the development of tinnitus does not specifically state an opinion as to the relationship between the Veteran's current tinnitus and his inservice noise exposure/head injury, they are insufficient to establish the element of medical nexus evidence. Sacks v. West, 11 Vet. App. 314 (1998). With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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 that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, a disorder that was indicated in the medical record to exist years after service, or a finding that one disorder is related to another disorder, is not a condition capable of lay diagnosis. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, as discussed, the Board finds that the Veteran's lay statements are outweighed by the negative STRs and post-service treatment records (indicating a disorder that began years after service). The Board cannot ignore the significance of the fact that the Veteran first filed his claim for service connection in 2008, over 25 years after leaving service. Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Indeed, to the extent that he contends that his tinnitus has existed since service, the Board simply does not find the Veteran to be credible. In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for tinnitus. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs