Citation Nr: 1300960 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-46 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Heather Vanhoose, Esquire WITNESSES AT HEARING ON APPEAL Appellant and his friend, D.W. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran's DD 214 shows that he had active service from January 1956 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Winston Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT Tinnitus was not present during service and the currently claimed tinnitus did not develop as a result of any incident during service, to include exposure to noise. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). By letter dated May 2008, the Veteran was notified of the information and evidence necessary to substantiate his claim. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. VA satisfied the notice requirements under Dingess in the May 2008 letter, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date. Adequate notice has been provided to the Veteran prior to the transfer and certificate of his case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met. Nonetheless, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. It appears as though some of the Veteran's STRs may have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the fire was in possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). In addition to the Veteran's paper claims file, he also has an electronic file known as a Virtual VA file. The Board has reviewed the electronic file in conjunction with the Veteran's claim and finds that the evidence of record there is either cumulative of the evidence currently associated with the paper claims file or is irrelevant to the instant claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded VA audiology examinations and a VA ear examinations in November 2009 and December 2011. These examinations addressed the nature and etiology of his claimed ear disorder with the examiners providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background and Analysis The Veteran's service entrance and separation examinations are devoid of notation of complaints or diagnosis of tinnitus. A VA treatment record from March 2008 is the first instance of tinnitus in the claims file. At this time, the Veteran was diagnosed with tinnitus and has continued receiving both VA and private treatment for this disability until the present time. In these treatment records, as well as in his substantive appeal and hearing testimony, the Veteran reported that his tinnitus began while he was in service due to noise exposure from the rifle range, machine guns, and automatic weapons, as well as being present for an explosion in the boiler room. The Veteran also reported that he made several sick call visits, which should be documented in his service treatment records. The Board notes that these records are not in the claims folder, but may have been lost due to the fire (as discussed above). In support of his claim, the Veteran presented testimony from a fellow comrade in the Army, D.W. D.W. testified that he recalled the explosion the Veteran claims to have caused his tinnitus, and further testified that ever since he has known the Veteran, he has talked about his ears ringing. The Veteran also presented statements from a lay witness, B.B., who stated that the Veteran complained to her about constant ringing in his ears. The Veteran received treatment from a private provider in July 2009. This provider diagnosed the Veteran with constant bilateral tinnitus. The Board notes that this provider does not provide an opinion linking the Veteran's disability with service, but only provided a current diagnosis. The Veteran received an audiology examination and an ear disease examination in November 2009. For each examination, the examiner noted a history provided by the Veteran and noted that he had reviewed the available medical records and the claims file in its entirety. After the audiological examination, the audiologist concluded that the Veteran's tinnitus is less likely due to noise exposure in service. In support of his conclusion, the audiologist noted that the first evidence of a diagnosis of tinnitus is not until March 2008. Further, the audiologist noted that the Veteran filed another claim for service connection in 1971 and did not mention suffering from tinnitus. Instead, his claim for tinnitus was filed in 2008, over 50 years after service. Additionally, the audiologist noted the absence of documentation in the Veteran's STRs and pointed out that several of the Veteran's current conditions and medications are known to produce or exacerbate tinnitus. Thus, considering all of this information, the examiner stated that it would require mere speculation to attribute the Veteran's tinnitus to remote episodes of noise exposure while in basic training without any evidence of a diagnosis prior to 2008 and in the absence of evidence of hearing loss. As reflected in the October 2009 VA ear disease examination report, an additional VA examiner agreed with the opinion provided by the audiologist in the October 2009 audiology examination report. While noting a diagnosis of subjective tinnitus, the examiner stated that it would be conjecture to connect the Veteran's current tinnitus with his military service, specifically noting that the Veteran's separation examination found a normal ear with no report of tinnitus or hearing loss. Following a December 2011 examination, an additional examiner concluded that the etiology of the Veteran's tinnitus is less likely than not associated with hearing loss. The examiner stated that he is unable to comment on the degree of hearing loss because the test results are not reliable due to the patient's inconsistent responses. After careful consideration, the Board finds that the claim for service connection for tinnitus must be denied. The Veteran was not treated for tinnitus during service, and tinnitus is first shown no earlier than 2008. This is approximately 55 years after separation from service. While not outcome determinative, the Board notes that this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence showing that the Veteran's tinnitus is related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. In reaching the above determination, the Board has considered the statements form the Veteran and his friend, D.W., that the Veteran experienced tinnitus since his military service. A lay person is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible"). The Veteran is competent to state that he experiences ringing in the ears. In this regard, the Board acknowledges the Veteran and D.W.'s statements that the Veteran experienced noise exposure while on active duty due to an explosion. Both the Veteran and D.W. are competent to report their military services, as this is information that came to the both of them through their senses. Layno, 6 Vet. App. 465. Although the incident is not documented in the Veteran's available STRS, the Board finds their statements as to an in-service explosion to be credible, as there is no contradictory evidence of record. The Board again acknowledges that not all of the Veteran's STRS are currently available. However, the Board must still weigh the credibility of the Veteran's competent lay testimony that his tinnitus began and has continued since service. It is not in dispute that the Veteran currently suffers from tinnitus. It has been diagnosed, including by VA, since 2008. However, tinnitus is not noted in his STRs (to include on service separation examination). While the Board acknowledges that the Veteran is competent to observe whether or not he has tinnitus, the Board finds that his accounts that tinnitus was manifested and has persisted since are not credible. They are not credible both because they are inconsistent with/contradicted by contemporaneous clinical data (the report of the service separation examination which did not find tinnitus), which by their very nature (as contemporaneous findings made in a clinical setting) merit greater probative value, and because they are self-serving. The accounts of onset in service were not made until he filed his claim seeking compensation in April 2008, over 50 years after service. See Pond v. West, 12 Vet. App. 341 (1999). As noted by the November 2009 VA examiner, the Veteran made no mention of a hearing disorder at the time that he sought VA disability benefits for the first time in 1971. Consequently, service connection for tinnitus on the basis that they became manifest in service and have persisted since is not warranted. What remains for consideration is whether or not in the absence of a showing of onset in service and continuity since, the tinnitus may somehow otherwise be related to the Veteran's service. That is a medical question, and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir, 2007). The Veteran is not shown to have any medical expertise; consequently, his own opinion in this matter is not competent evidence; he has not presented any competent (medical opinion/textual) evidence in support of his claim. The only competent (medical) evidence in the record regarding a nexus between the Veteran's tinnitus and his service is the November 2009 VA examiners' opinions that the Veteran's tinnitus is less likely than not related to service. The examiners cited to the factual evidence, including that there was no evidence of tinnitus being noted/treated in service and that tinnitus was not diagnosed until more than 50 years post service. Because the examiners expressed familiarity with the record, and cited to supporting factual data, their opinions are probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because there is no competent evidence to the contrary, it is persuasive. Overall, while the Board acknowledges the Veteran's current diagnosis of tinnitus, the preponderance of the evidence is against the finding that his current disability is etiologically related to service. The claim for service connection for this disability must therefore be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER The appeal for service connection for tinnitus is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs