Citation Nr: 1300644 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 12-24 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from March 1966 to June 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's tinnitus either began during, or was otherwise caused by, his military service, to include any noise exposure therein. CONCLUSION OF LAW Criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for tinnitus. He served in active military duty from March 1966 through February 1969 in the United States Marine Corps. During service, the Veteran's MOS was rifleman. He is currently diagnosed with tinnitus. As an initial point, the Board acknowledges that the Veteran was exposed to loud noise in service, such as from gunfire. His statements on this matter are found to be credible and are supported by his DD-214, showing service as a Marine rifleman in Vietnam. The Veteran's highly honorable service is not in dispute. However, neither exposure to noise in the military, nor a currently diagnosed disability, alone is grounds for service connection in all cases. Rather, the military noise exposure must cause the tinnitus. This connection can be established by either medical opinion of record or by credible evidence that establishes continuity of symptomatology. The Board will now turn to a discussion of the etiology of the Veteran's tinnitus. The Board will first consider whether service connection is warranted based on continuity of symptomatology. Service treatment records were reviewed, but fail to describe any complaints of hearing difficulty or ringing ears while the Veteran was in service. Audiometric testing was conducted in November 1965, while the Veteran was in service, but makes no mention of any complaints of ringing or buzzing in the Veteran's ears. The Veteran demonstrated 15/15 on whispered voice testing at his separation physical, and his ears were noted to be normal. As such, the record does not contain any evidence the Veteran received medical treatment for ringing or buzzing in his ears during service. Following service the Veteran did not file a claim seeking service connection for his tinnitus until several decades after his separation of service, and in fact there is no record that he sought any treatment for ringing for many years. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). However, in a June 2012 written statement the Veteran addressed this delay in seeking service connection for tinnitus, asserting that after Vietnam he was initially more concerned with receiving treatment for his post traumatic stress disorder and until that was treated his hearing seemed less important. Although this may explain why the Veteran's focus was on other aspects of his health, the record still fails to establish that the Veteran sought any treatment for the alleged symptoms of tinnitus for several decades after he separated from service. The record includes the Veteran's description of a ringing in both ears that never goes away. He also notes that he usually cannot tell which ear experiences the most ringing. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 730 (2002). However, it is worth noting that at no time has the Veteran alleged that his tinnitus actually began during service and has continued to the present time. Instead, the Veteran has given two statements regarding the onset of his symptoms of tinnitus: First, in February 2010 the Veteran told his VA examiner the condition began four years earlier, therefore suggesting an onset of symptoms in approximately 2006, nearly forty years after his separation of service. Conversely, in the June 2012 written statement the Veteran asserted that the ringing in his ears began "shortly after" his military service. Although the Veteran's statement is unclear as to when 'shortly after' service refers, his statement still suggests his symptoms did not develop until after his military service. Therefore, the evidence does not establish, and the Veteran does not allege, that the ringing in his ears actually began during his military service. Additionally, while the Veteran is considered competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of either sensioneural hearing loss or tinnitus from military service in the 1960s. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's opinion is insufficient to provide the requisite nexus between his tinnitus and his military service, particularly when the Veteran himself has indicated the problem began years, if not decades, after service. Based on the Veteran's complaints of ringing in both ears and his military noise exposure, he was provided with a VA examination in February 2010. The Veteran reported tinnitus which began around four years ago after working around noise in the military, a statement which admittedly makes little sense given that the Veteran separated from service in 1969, more than 40 years before the VA examination. The Veteran also reported that the tinnitus occurs every time he chews food, and added that it was intermittent in both ears but occurred frequently throughout the day. The examiner diagnosed the Veteran with bilateral recurrent tinnitus. However, the examiner found the tinnitus is less likely than not related to his military service, to include noise exposure therein, since it only occurs when the Veteran moves his jaw. The examiner recommended a referral to an ENT for further exploration on the etiology of the Veteran's tinnitus. In March 2010 the Veteran was provided with a referral examination by an ENT. The Veteran described a sound like a pin dropping in his ear when he chews. He also reported it occurred more on his right side than his left. The examiner opined the condition the Veteran described is not tinnitus, which has a high pitched constant or intermittent tone. Instead, the examiner opined the Veteran has eustachian tube dysfunction, which can cause a pin-like sound when chewing. The examiner opined it is less likely than not that the sound the Veteran is hearing is due to acoustic trauma in service, providing highly probative evidence against this claim. The two VA examinations differ as to what is causing the Veteran's symptoms of a ringing in his ears. The first examiner found the Veteran has tinnitus, while the second examiner found the Veteran has eustachian tube dysfunction. Regardless of the diagnosis, the Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, both examiners agreed that whatever the appropriate diagnosis was for the Veteran's reported symptoms, it was not connected to his time in service, including any acoustic trauma therein. Therefore, regardless of whether the Veteran has tinnitus or not, or some other problem, the medical opinions of record agree that his current condition neither began during nor was otherwise caused by his time in service. The evidence of record does not include any other medical opinions regarding the Veteran's tinnitus. As such, none of the medical evidence in the record establishes that the Veteran's claimed tinnitus either began during, or was otherwise cased by, his time in service. Furthermore, the Veteran himself has not alleged that his tinnitus began during and has continued since his military service. Therefore, the evidence does not establish it is as likely as not that the Veteran's tinnitus either began during or was otherwise caused by his military service. As such, the criteria for service connection is not met and the Veteran's claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2012, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter, however, failed to inform the Veteran how disability ratings and effective dates were established. Under these circumstances, however, the Veteran's claim for service connection was denied, so no disability ratings or effective dates were determined. As such the Veteran was not harmed by failure to receive notice of these elements, as they were not applicable to his current claim. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, and the Veteran has not indicated any private treatment records exist. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds that both VA examinations were thorough and adequate and provided a sound basis upon which to base their decisions with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of either examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs