Citation Nr: 1300166 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-44 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for bilateral tinnitus. ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran requested a video conference hearing before the Board, however, he subsequently cancelled the video conference hearing. Therefore, his request for a hearing is withdrawn. See C.F.R. §20.702(e) (2012). FINDING OF FACT Tinnitus is not shown to be etiologically related to active service. CONCLUSION OF LAW Tinnitus was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2009 - prior to the RO decision in this matter, which advised the Veteran of the information VA would obtain, the information he was responsible for obtaining, and the criteria for supporting a claim for service connection. The letter advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, and records of his post-service treatment. The Veteran was afforded a VA compensation and pension examination germane to his claim on appeal. The Board finds that the examination and related medical opinion are adequate for VA adjudication purposes, as it includes consideration of the relevant lay and medical evidence of record, and is supported by a sufficient rationale. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). Service Connection The Veteran claims entitlement to service connection for tinnitus on the basis that during service, he was exposed to acoustic trauma while working as an engine room mechanic and throttle man. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of 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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303. The Veteran's DD Form 214 shows a military occupational specialty (MOS) of an "EN." The Veteran's service treatment records (STR) do not reflect a diagnosis of or treatment for tinnitus. Tinnitus was not noted on the Veteran's separation examination in September 1964. In July 2009, the Veteran filed a claim for tinnitus. This was the first complaint of tinnitus on record; he did not indicate when his disability began, however, he did note that he was treated for his condition in May 2009. A VA audiological examination was conducted in October 2009. The Veteran reported military noise exposure from working with diesel engines. Civilian noise exposure was reported from working with power tools and lawn equipment; he also noted that he worked on tugboats and set ceramic tile. During this examination, the Veteran stated that he first noticed tinnitus onset around 2006; he reported intermittent tinnitus in his right ear, but indicated he did not notice it in his left ear. The examiner opined that it was less likely than not that the Veteran's tinnitus was related to the noise exposure in military service. The rationale was that tinnitus that is caused by acoustic trauma is usually present immediately; however, the Veteran reported that the onset of ringing in his right ear began only three years prior. As indicated above, the Veteran reported an onset of tinnitus symptoms around 2006, which is over 40 years after his separation from service. He has not offered a description of his symptoms since service that would provide a basis for finding a continuity of symptomatology since service. Thus, any chronic tinnitus condition, manifested many years after service. See Maxson v. Gober, 230 F.3d 1330 (2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The treatment documentation of record also does not include any medical opinions or notations suggesting a link between the Veteran's tinnitus and service. The Board acknowledges its consideration of the lay evidence of record, including the Veteran's report that in-service noise exposure resulted in his bilateral tinnitus. The Board further notes that the Veteran is competent to report on the onset of ringing in his ears. See Layno v. Brown, 6. Vet. App. 465, 469-71 (1994) (a layperson is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran's service treatment records do not show that the Veteran reported any ringing in his ears in service. Furthermore, when examined at the time of separation, no relevant abnormalities were shown. See August 1964 Report of Medical Examination. While the Veteran stated his belief that acoustic trauma in service caused his tinnitus, he did not indicate that he experienced a continuity of symptomatology since service. See December 2009 Notice of Disagreement and October 2010 Substantive Appeal. Indeed, as noted above, he informed the VA audiologist that he did not experience ringing in his ears until 2006, many years after service. Thus, while the Veteran is competent to report on symptoms (ringing in the ears) and report on continuity of symptoms of ringing in the ears since service (which he has not contended), he is not competent to provide a nexus opinion because he lacks the necessary medical training and expertise to provide such an opinion on etiology. Therefore, his statements alone are not enough to support his claim. Furthermore, while the Board acknowledges that the Veteran has reported tinnitus symptoms to VA medical professionals, the evidence of record is notably silent for any tinnitus condition that has been deemed chronic in nature, relating back to service. The Board has thus weighed the absence of in-service complaints or findings of tinnitus, the absence of continuity of symptoms since service, and the VA examiner's conclusion that the Veteran's tinnitus is less likely than not related to noise exposure in service, with the Veteran's statements that his tinnitus is related to service. This is not a case where the evidence is in relative equipoise. The most probative evidence shows that the Veteran first complained of tinnitus after service, and does not show that such is related to service. Accordingly, service connection for bilateral tinnitus is denied. ORDER Service connection for bilateral tinnitus is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs