Citation Nr: 1237756 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-00 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen the claim for service connection for an eye disability to include blindness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the Veteran's claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of whether new and material evidence has been received to reopen the claim for service connection for an eye disability to include blindness 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. The Veteran is found to have presented credible lay assertions sufficient to establish that she had headaches during service and she has experienced headaches since her period of active duty 2. The currently demonstrated headache disorder is related to the Veteran's period of active service. 3. The Veteran is not shown to have manifested complaints or findings of tinnitus in active service or for many years thereafter. 4. The Veteran is not found to have presented credible lay assertions sufficient to establish the onset of tinnitus in service or a continuity of symptomatology referable to tinnitus beginning in service and continuing thereafter. CONCLUSIONS OF LAW 1. The criteria to establish service connection for headaches are met.. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria to establish service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a VCAA notice letter to the Veteran in November 2008, prior to the initial adjudication of the claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in November 2008. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA treatment records are associated with the claims folder. The Veteran underwent VA examinations in 2008 to obtain medical evidence as to the nature and likely etiology of the claimed tinnitus and headaches. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the Claim The Veteran contends that she has a headaches disorder and tinnitus that first manifested in service and continued since service, and therefore, service connection is warranted. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may also be granted for certain chronic diseases such as an organic disease of the nervous system when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that the Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for headaches The Veteran asserts that she first began to have headaches during her period of active service and the headaches have continued since service. At the August 2008 VA examination, the Veteran reported that she first began to have headaches in 1973 or 1974 when she was stationed at Fort Stewart. The Veteran stated that migraine headaches were diagnosed and she was treated with Fiorinal. The assessment was chronic recurrent migraine headaches, much improved and controlled with Zolmitriptan. The examiner indicated that the Veteran stated that she first had these headaches while at Fort Stewart and therefore it was at least as likely as not that the headaches were service connected. There is evidence of complaints of headaches in service. The July 1976 separation examination report indicates that the Veteran reported having frequent and severe headaches. The Veteran is competent to describe observable symptoms such as a headache. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran's lay statements as to the onset of headaches in service and since service are competent. The Board also finds these statements to be credible. The Veteran's statements have been consistent. As noted, the service separation examination report documents a report of frequent and severe headaches. Review of the record further shows that the Veteran has consistently reported that the headaches began in service. See the August 2008 VA examination report, the May 2008 VA treatment record which notes that the Veteran reported having migraine headaches since the 1970's, and the Veteran's testimony at the hearing before the Board in May 2012. There is competent medical evidence which relates the current headaches to the Veteran's period of service. As noted, the VA examiner who conducted the August 2008 VA examination related the current headaches to headaches in service. The Board finds the evidence establishes that the current headaches disorder had its onset in service and has continued since service. Thus, service connection for headaches is warranted. Service connection for tinnitus The Veteran contends that her current tinnitus was due to noise exposure in service, and therefore, service connection is warranted. Upon review of the evidence of record, the Board denies the appeal for service connection for tinnitus. There is competent evidence of a current diagnosis of tinnitus. The September 2008 VA examination report shows a diagnosis of constant bilateral tinnitus. There is lay evidence of symptoms of tinnitus in service and since service. At the hearing before the Board in May 2012, the Veteran stated that she had acoustic trauma in service. The Veteran stated that her office was near a rifle range and she was consistently exposed to acoustic trauma coming and going to the office. The Veteran stated that the ringing of the ears began in service and it was always present. She stated that the ringing in the ears was very low grade and she was told that because it was so low, she should not worry about it. The Board must assess the competency and credibility of lay statements regarding in-service or continuous post service symptomatology. A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran is competent to describe first-hand events such as experiencing acoustic trauma and to describe observable symptoms such as ringing in the ears. However, the Board finds that the Veteran's credibility is undermined by the fact that her statements as to the onset of the tinnitus are inconsistent. The lay statements made in connection with the Veteran's compensation claim dated in 2008 contradict the contemporaneous statements that she made in service and upon service separation, and belie the Veteran's current assertion of continuity of symptoms. The July 1976 separation examination report indicates that the Veteran reported "no" when asked if she had ear trouble or hearing loss. Service treatment records do not document complaints or diagnosis of tinnitus. A January 2008 VA treatment record indicates that the Veteran reported having ringing in the ears for at least a few years. An April 2003 VA treatment record indicates that the Veteran reported having bilateral constant tinnitus of unknown onset. The September 2008 VA audiometric examination report indicates that the Veteran reported having constant bilateral tinnitus of an unknown onset. The VA audiologist stated that the Veteran's claims folder was reviewed and no competent of tinnitus or hearing loss were noted. The VA audiologist stated that the Veteran served as a clerk typist in service. The VA audiologist concluded that it was unlikely that the current tinnitus was related to military service. The Board finds that the Veteran's statements that the tinnitus first began in service are not credible. The record shows that the first time the Veteran reported having tinnitus in service was during the May 2012 Board hearing. These statements were made over thirty years after service separation. These statement are inconsistent with the Veteran's own statements made in the course of medical treatment in 2008 and are inconsistent with the statements the Veteran made to the VA audiologist upon examination in August 2008. The August 2008 VA audiometric examination report indicates that the Veteran stated that the onset of the tinnitus was unknown. As noted above, the January 2008 VA treatment record indicates that the Veteran reported having ringing in the ears for at least a few years. Because of the inconsistently of the Veteran's own statements concerning the onset of the tinnitus, the Board finds that the Veteran's statements made in 2012 are not credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board also finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time. The service examination report shows that the Veteran denied having any ear trouble or hearing loss. The Board finds that the Veteran's statements made in the course of the separation examination have greater probative value because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Further, these statements were made at the time of service. Thus, the Veteran's lay statements are not sufficient to establish that the tinnitus began during active service and continued after service. Apart from a lack of continuity of symptoms, the record also lacks competent medical evidence which establishes a relationship between the Veteran's current tinnitus and active service. Significantly, there is competent medical evidence, the September 2008 VA audiometric examination report and medical opinion, that establishes that the current tinnitus is not related to disease or injury or other event in service. The September 2008 VA audiometric examination report indicates that the VA audiologist concluded that it was unlikely that the current tinnitus was related to military service. The Board finds the above-cited VA medical opinion to be highly probative evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). This examination report has high probative value because the examiner relied on sufficient facts and data, provided a rationale for the respective opinion, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. There is no other medical opinion, private or VA, that refutes the above-cited VA examiner's conclusion and that is supportive of the Veteran's claim for service connection for the claimed tinnitus. There is no competent evidence to causally link the Veteran's current tinnitus to service. The Veteran's own assertions that her current tinnitus is related to her period of service are afforded no probative weight in the absence of evidence that the appellant has the expertise to render opinions about medical matters. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). There is no evidence which establishes that the Veteran has medical expertise. Lay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose and need not be considered. Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991). In summary, as the preponderance of the evidence is against the Veteran's claim, service connection for tinnitus must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for headaches is granted. Service connection for tinnitus is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), specifically provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for benefits. 38 U.S.C.A. § 5103A(a)(1) (West 2002). As part of the duty to assist, VA shall make reasonable efforts to obtain relevant records including private records that the claimant adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). A review of the record shows that at the hearing before the Board in May 2012, the Veteran and her representative asserted that some medical professionals told the Veteran that her eye disability and blindness may have pre-existed service and were possibly aggravated by active service. Thus, the RO must attempt to obtain copies of these medical records and/or statements. The RO should request that the Veteran provide information referable to any VA or non-VA treatment rendered the Veteran for the eye disability and blindness. 38 U.S.C.A. § 5103A(b)(1). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO/AMC must take appropriate steps to contact the Veteran in order to have her identify all sources of VA and/or non-VA medical treatment for the claimed eye and blindness disorders since service. The RO/AMC must take appropriate steps to contact the Veteran and ask her to identify the medical professionals who told the Veteran that her eye disability and blindness may have pre-existed service and were possibly aggravated by active service. Legible copies of all outstanding clinical records and medical opinions should be associated with the Veteran's claims file. The letter should invite the Veteran to submit any pertinent medical evidence or treatment records in support of her claim including any evidence of treatment for the claimed conditions beginning in service or shortly thereafter and any evidence that the claimed disability was aggravated by active service. 2. After completing all indicated development, the RO should readjudicate whether new and material evidence should be received to reopen the claim for service connection for an eye disability and blindness. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the Veteran and her representative and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs