Citation Nr: 1300929 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 02-11 891 ) 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 WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from January 1975 to July 1975, and active service from November 1976 to November 1979. He also had multiple periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented testimony at hearings conducted in September 2003, April 2009, and October 2012. Each hearing was held by one of the undersigned Veterans Law Judges (VLJs), therefore this decision will be decided by all three VLJs of the panel. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Copies of the hearing transcripts are associated with the claims file and have been reviewed. The tinnitus claim was remanded by the Board for further development in December 2005, October 2008, April 2010, January 2011, and August 2012. This appeal also included the issue of entitlement to service connection for a right ear hearing loss disability. However, in a December 2011 rating decision, the Veteran was granted service connection for a right ear hearing loss disability. As the benefits sought on appeal with respect to right ear hearing loss have been granted, the Board no longer has jurisdiction over that issue. FINDINGS OF FACT 1. There is no credible evidence of tinnitus during service or for many years thereafter, and the probative medical evidence is against a link between the Veteran's current tinnitus and his active military service, to include any in-service noise exposure. 2. The Veteran is competent, but not credible, in his assertion as to having continuous tinnitus symptoms since service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A February 2002 letter satisfied these notice obligations in terms of apprising the Veteran of the type of evidence and information needed to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The RO sent him that letter prior to initially adjudicating this claim in the April 2002 rating decision at issue. Additional VCAA letters were also provided in August 2003, June 2006, November 2008, April 2010, and January 2011, and those letters also provided information concerning his claim. The tinnitus claim has since been readjudicated in a December 2011 supplemental statement of the case. The Veteran therefore has received all required notice concerning this claim. VA also has a duty to assist him in fully developing the evidence concerning this claim, which includes assisting him in the procurement of relevant records and, when necessary, providing an examination for a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains his service treatment records (STRs), post-service VA evaluation and treatment records, and lay statements. The Veteran underwent VA compensation examinations to determine the etiology of his tinnitus, and the reports are in compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance.). Additionally, as mentioned, the Veteran testified before the undersigned VLJs. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. No further notice or assistance to him with the claim is required. 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). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Claim for Service Connection The Veteran contends that he has tinnitus as a result of exposure to loud noises during active service. Specifically, he reports loud noises from a device that exploded near a truck in which he was sitting, and in a dining hall facility in connection with his duties as a cook. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247, 252 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of 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 diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 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) (2012). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) 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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law , lay observation is competent). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a)(2012). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(c), (d). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated by active service, while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (2012). 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. The Board must 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). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that 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). 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, 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). ACDUTRA from January to July 1975 with the Army Reserves has been confirmed. During this period of service, the Veteran's military occupational specialty was a medical specialist. During his enlistment examination in November 1974, the Veteran denied any ear trouble, and clinical evaluation of the ears was normal. An April 1975 evaluation of the ears was also normal. A separation examination was conducted in June 1975. On the Report of Medical History, the Veteran checked the box indicating that he then had or once had ear, nose or throat trouble. However, the examiner stated that the Veteran could not explain any ear trouble, in pertinent part, except for being tired. Significantly, clinical evaluation of the ears during the June 1975 separation examination was normal. According to a July 1975 DA Form ["Statement of Medical Condition"], the Veteran indicated that, to the best of his knowledge, there had been no change in his medical condition since the June 1975 separation examination. In November 1976, the Veteran underwent an enlistment examination for active duty service with the U.S. Marine Corps. On the Report of Medical History, he denied any ear trouble, and clinical evaluation of the ears was normal. In December 1977, the Veteran underwent an annual examination with the Marine Corps. His usual occupation was listed as a "cook on watch." On the Report of Medical history, the Veteran reported having had ear, nose, or throat trouble which the examiner noted were related to a sinus condition. Clinical evaluation of the ears was normal. In November 1979, the Veteran underwent a release from active duty (RAD) examination. On the Report of Medical History, he denied having had any ear trouble, and clinical evaluation of the ears was normal From 1980 to 1986, he served in the Marine Corp Reserves and his MOS was a cook. He underwent periodic examinations in September 1981, November 1981, April 1983, and March 1984. On the Reports of Medical History, he denied having had any ear trouble, and clinical evaluation of the ears was normal. In September 1986, the Veteran underwent a re-enlistment examination for the Marine Corp Reserves. On the Report of Medical History, he denied having had any ear trouble, and clinical evaluation of the ears was normal Subsequently, the Veteran entered the Air Force Reserves. A periodic examination conducted in March 1990 revealed a normal clinical evaluation of the ears. An associated audiogram shows no tinnitus complaints. According to an AF Form 2755B dated in September 1995, the Veteran was exposed to noise while performing his normal duties which involved operating grounds equipment. On a January 1996 Hearing Conservation Examination report and a Report of Medical History, the Veteran denied having any ringing in the ears, or ear trouble. An associated audiogram also shows no ear complaints. Post-service, on December 11, 2001, the Veteran requested an evaluation because he heard a buzzing noise in his right ear for the past two weeks. He was seen at the VA three days later, and during the examination, he reported a buzzing sound, but in his left ear. On examination, there was some redness and swelling in the left ear canal. Assessment was otitis externa of the left ear. The Veteran underwent a private audiogram in 2002; however the report shows no tinnitus complaints, treatment, and/or diagnoses. During the September 2003 Board hearing, the Veteran testified that his tinnitus symptoms began two years previously. During the 2009 Board hearing, the Veteran reiterated his contention that his tinnitus developed as a result of loud noises coming from the dining hall. In May 2010, the Veteran was afforded a VA audiologic examination. He reported, in pertinent part, tinnitus in his left ear, which he attributed to engine noise exposure in service. When questioned by the examiner, the Veteran initially said that he did not know when his tinnitus began, but later said that it began in service. The examiner determined that tinnitus was less likely than not permanently aggravated by military service. In an October 2010 statement in support of the claim, the Veteran indicated that during Air Force Reserve service, he was exposed to loud noises while operating a truck and warehouse forklift and from a loud generator outside of the field kitchen tents. In another October 2010 statement, the Veteran reported being exposed to loud noises from the drill instructors, while operating dishwashers, on the serving line and from pots and pans banging together or hitting the concrete. In August 2011, the Veteran underwent an additional VA audiologic examination by the same examiner. The examiner concluded that the Veteran's tinnitus is less likely than not caused by, or a result of, his military service. In arriving at such opinion, the examiner referred to the absence of tinnitus complaints in service, and the Veteran's 2003 hearing testimony in which he reported tinnitus having its onset in approximately 2001. During the most recent Board hearing in October 2012, the Veteran stated that he first noticed ringing in his ears in 1975 while performing a field exercise in the Army Reserves. He explained that while he was sitting in a truck, a device exploded outside of it. He alleged that he overcame his ear trouble while in the Marine Corps. However, during subsequent service in the Air Force Reserves, he was reportedly exposed to loud noises in the dining hall. He also stated that his tinnitus was mild in service and became louder over time, specifically in 2001. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The post-service evidence reflects the Veteran's complaints of a buzzing or ringing noise in the ears. Tinnitus is a disorder capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran, as a layperson, is competent to report having current tinnitus symptoms. However, the Veteran's STRs covering his active service are devoid of any tinnitus complaints, treatment, and/or diagnoses. Thus, despite the Veteran's competent report of experiencing tinnitus symptoms in active service, there is no evidence that he ever complained of ear trouble during any of the many service examinations that he was afforded. The Board affords great probative value to the service treatment and examination reports. They are probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board notes further that the STRS from the Veteran's subsequent Reserves service also show no tinnitus complaints, treatment, or diagnoses. The record also lacks competent medical evidence which establishes a relationship between the current tinnitus and service. Significantly, after reviewing the claims file and examining the Veteran in May 2010, and then again in August 2011, a VA examiner concluded that the Veteran's tinnitus was less likely incurred in, or aggravated by, service. In arriving at such opinion, the examiner noted the absence of tinnitus in service and for decades thereafter, as well as the Veteran's 2003 hearing testimony regarding the onset of tinnitus in approximately 2001. The Board finds the May 2010 and August 2011 VA medical opinions 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). These examination reports are highly probative because the examiner relied on sufficient facts and data, provided a rationale for the opinions, and contain sound reasoning. There is no other medical opinion, private or VA, which refutes the above-cited VA examiner's conclusion and supports the Veteran's service connection claim for tinnitus. There is no competent medical evidence linking the Veteran's tinnitus to active service. The only evidence in support of the claim is provided by the Veteran, himself. Although competent to report any symptoms of tinnitus he previously or currently has, he is not competent to render an opinion as to the medical etiology of his tinnitus, absent evidence showing that he has medical training or expertise. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377. The Veteran also asserts that he has had continuing tinnitus symptoms since service, and as a layperson, he is competent to do so. However, once evidence is determined to be competent, the Board must determine whether the evidence is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Although the Veteran currently asserts that he has experienced tinnitus symptoms since his active service in 1975, the first medical evidence of tinnitus in the claims file is not shown until decades after service. VA treatment notes dated in 2001 - i.e., decades after service, show the Veteran's first complaints of a buzzing noise in the ears. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. However, the Board may consider a lack of contemporaneous medical evidence of tinnitus for decades after service as one factor in assessing the credibility of lay evidence. Id. at 1337. There are other factors that weigh against the credibility of the Veteran's lay assertions of continuity of symptoms. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992). The Veteran's statements as to continuing symptoms since service are inconsistent. According to his original claim received in January 2002, the Veteran, through his representative, attributed tinnitus directly to his service with the Marine Corps which began no earlier than 1976. In 2003, he testified at a Board hearing that his tinnitus symptoms did not manifest until "two years ago," which corresponds to approximately 2001. Currently, as mentioned, the Veteran maintains that he has had tinnitus symptoms ever since his Army Reserve service in 1975. His own reported history of continuity is inconsistent and the veracity of his lay statements is undermined by their inconsistencies. The Board has considered the Veteran's explanation as to why he told the 2010 VA examiner that his tinnitus did not begin until 2001. The Veteran explained that in 2001, his symptoms became noticeably worse, but before then, although he had symptoms, there were just mild in nature. However, the Veteran initially told the VA examiner that he did not know when his symptoms began, and only later attributed it to his 1975 service. In any event, the Veteran's argument, however, is not persuasive. The Veteran clearly testified under oath to one of undersigned VLJs that his tinnitus first began in approximately 2001. In short, the Veteran is not consistent with regard to his assertions of continuity of symptoms ever since service discharge. Although not dispositive of the merits of the claim, a personal interest to receive monetary benefits is clearly evident. The in-service and post-service medical and lay evidence of record does not demonstrate continuity of in-service symptomatology for tinnitus. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 496-97. The Veteran's lay assertion as to continuing tinnitus symptoms is not credible. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of entitlement to service connection for tinnitus is denied. VITO A. CLEMENTI M. E. LARKIN Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs