Citation Nr: 1217954 Decision Date: 05/18/12 Archive Date: 05/31/12 DOCKET NO. 08-11 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for psychiatric disability, to include depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active duty military service extended from January 1968 to January 1971. Subsequent to this, she had a long period of service in the Army Reserve and/or National Guard with various periods of active duty for training (ADT) and inactive duty training (IDT). She had a final period of active duty form December 1990 to March 1991 when it was determined that she was physically unqualified for deployment. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's attempt to reopen her claims for service connection. In November 2009, the appellant testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. In January 2010, the Board reopened the Veteran's claim for service connection for tinnitus and remanded the case for additional development including a VA examination. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service treatment records do not reveal any complaints of, diagnosis of, or treatment for, tinnitus during active military service. 2. The credible evidence of record indicates that the Veteran's tinnitus is related to her nonservice-connected hearing loss and not to any period of qualifying active military service or the head injury incurred during ADT. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A letter dated in December 2006 2009 satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating, with respect to the issues on appeal. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter also provided notice of what constitutes new and material evidence to reopen the claim with respect to her claim to reopen the previously denied a claim for service connection for tinnitus disability. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records, service personnel records, VA medical treatment records, and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examination of the Veteran was conducted. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Accordingly, the appellant is not prejudiced by a decision at this time. 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. § 1110; 38 C.F.R. § 3.303. When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in a presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record as a whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000). A "veteran" is a person who served in active military, naval, or air service. See 38 U.S.C.A. § 101(2) (West 2002). Pursuant to 38 U.S.C.A. § 101(24), " 'active military, naval, or air service' includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002). Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ADT or, for injury incurred during IDT. The Veteran had a period of active duty from January 1968 to January 1971. Subsequently, she had a long period of service in the Army Reserve and/or National Guard with various periods of ADT and IDT. The evidence of record establishes that during a period of ADT in July 1980 she was assaulted and incurred injuries to her head and back. Service connection has been granted for various disabilities resulting from this assault. Most recently, the RO denied the Veteran's attempt to reopen her claim for service connection for tinnitus in November 2004. She was notified of this decision in December 2004 but did not file an appeal. This rating decision became final. 38 U.S.C.A. § 7105(c). Subsequent to the November 2004 RO rating decision, a large volume of medical evidence has been obtained by VA. Over one entire claims file volume of medical evidence has been obtained and contains private medical records, VA medical records, and Social Security records. While many of these records are dated prior to November 2004, they do not appear to have been previously considered. These records show complaints of hearing loss and tinnitus with a history of the head injury during ADT. Accordingly, the Board reopened the claim for service connection for tinnitus in the January 2010 decision and then remanded the issue for a VA examination. The Veteran had a period of active duty from January 1968 to January 1971. Service treatment records for her period of active duty do not indicate any complaints of, treatment for, or diagnosis of tinnitus. Separation examination was conducted in December 1970. There is no indication of any history of complaints of tinnitus. On the report of medical history she did not indicate any ear trouble. The evidence of record establishes that during a period of ADT in July 1980 the Veteran was assaulted and incurred injuries to her head. Service treatment records dated subsequent to this injury do not reveal any complaints of tinnitus. For example, in June 1983 a service department medical examination of the Veteran was conducted for reserve enlistment purposes. No abnormality of the ears was reported or noted. There was no indication of any reports of symptoms of tinnitus. At that time she also did not report her history of head injury. In 1994 final reserve separation examination of the Veteran was conducted. Again, clinical evaluation of the Veteran's ears was normal. On the report of medical history she did indicate a history of head injury, but she did not indicate the presence of symptoms of tinnitus or any ear trouble. In May 1981 a VA examination of the Veteran was conducted. The Veteran specifically reported a laceration to her scalp which she incurred during the assault on ADT in 1980. At this time she did not report have any symptoms of tinnitus. A VA outpatient audiology consultation report dated June 2000 is of record. At this time she reported an onset of hearing loss and buzzing in her ears which she said began during military service in the late 1970s. She reported periodic tinnitus, a distant buzzing sound, which she also indicated had its onset during military service. She reported the 1980 head injury but also indicated no changed in hearing from the incident. The assessment was mild sensorineural hearing loss. At March and September 2001 VA audiology consultations she did not report symptoms of tinnitus. An April 2005 VA audiology note indicates that the Veteran was having difficulty with her prescribed hearing aids; again, symptoms of tinnitus were not reported. In October 2010 a VA audiology examination of the Veteran was conducted. At this examination she reported an onset of hearing loss and tinnitus in 1979, when she was assaulted and incurred a head injury. She reported that tinnitus occurred in weekly episodes which lasted for hours. In December 2011 another VA audiology examination of the Veteran was conducted and she made an identical report of the onset of her symptoms of tinnitus. Because the medical opinion requested related to the onset of tinnitus and its relationship to the Veteran's head injury was beyond the scope of training of the audiologists who conducted these audiology examinations, the record was referred to a physician for review. In March 2012 a VA physician reviewed the record, including the claims file. The physician's medial opinion was that it was less likely than not that the Veteran's claimed tinnitus was the result of the service-connected head injury. The physician noted that head injuries can cause symptoms of tinnitus, but that in the present case this was less likely the cause in light of the Veteran's documented sensorineural hearing loss. The record reveals that service connection has been denied for hearing loss. The only credible medical opinion of record relates the Veteran's claimed tinnitus to this nonservice-connected hearing loss and not to active military service or the head injury incurred during ADT. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report symptoms that she experiences symptoms such as ringing in her ears, tinnitus. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, such reports of symptoms of tinnitus dating from the head injury during ADT are not credible in light of the other evidence of record. Reserve service medical examinations of the Veteran were conducted on multiple occasions subsequent to the 1980 head injury. In each instance she did not report symptoms of tinnitus. She also failed to report any symptoms of tinnitus during the 1981 VA Compensation and Pension examination which was specifically conducted to evaluate the residuals of her 1980 head injury. At the recent VA Compensation and Pension examinations she reported symptoms of tinnitus dating back to the head injury during ADT, while in prior VA outpatient records she reported a continuity of tinnitus symptoms dating back apparently to active duty in the 1970s. Accordingly, her reported continuity of symptomatology is not credible and fails to provide the required nexus to any period of qualifying service. The preponderance of the evidence is against the claim for service connection for tinnitus; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for tinnitus is denied. REMAND The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for psychiatric disability, to include depression, requires remand. The evidence indicates that the Veteran receives regular psychiatric treatment at VA medical facilities. At the November 2009 hearing, she testified that she received regular outpatient mental health treatment from VA on approximately a monthly basis. Review of the record does not reveal any VA outpatient records have been obtained since approximately October 2006. Records generated by VA are constructively included within the claims file. If records of VA treatment are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is required.) 1. Obtain complete copies of all of the Veteran's VA mental health medical treatment records for the period of time from October 2006 to the present. 2. Review the above evidence and make a determination whether new and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for psychiatric disability. 3. Only if the evidence of record warrants the reopening of the claim, reopen the claim and schedule the Veteran for a VA psychiatric examination. The report of examination is to include a detailed account of all manifestations of psychiatric symptoms found to be present. The examiner is to review the evidence of record and provide opinions on the following: * Whether it is as least as likely as not (50 percent or greater probability) that any psychiatric disability diagnosed was incurred during active military service. * Whether it is at least as likely as not that any psychiatric disability diagnosed is aggravated by, proximately due to, or the result of, any of the Veteran's service-connected disabilities. The claims folder and a copy of this remand must be made available and reviewed by the examiner. In this respect, any relevant medical records contained in the Virtual VA eFolder must be made available to the examiner. The examiner must provide a complete rationale for all conclusions reached. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claims folder and ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the examination report does not include adequate responses to the opinions requested, it must be returned for corrective action. 38 C.F.R. § 4.2; Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 5. Ensure that full adjudication of the Veteran's claim for service connection for a psychiatric disability has been conducted including adjudicating the issue of service connection should reopening of the claim be warranted. If the benefit sought remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and her representative afforded an opportunity to respond. Then, the case should be returned to the Board for appellate review, if appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs