Citation Nr: 1301392	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  12-26 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel



INTRODUCTION

The Veteran served on active duty in the military from June 1977 to June 1981.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDING OF FACT

Although the Veteran has a current diagnosis of tinnitus, as well as credible evidence of acoustic trauma during his military service from repeated exposure to loud noise, the most probative (competent and credible) medical and other evidence of record indicates this condition is unrelated to his military service, including specifically to that noise trauma.


CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by his military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA).  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).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).  These notice requirements apply to all elements of a service-connection claim, including the "downstream" 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).

The duty to notify has been satisfied in this case by way of a letter to the Veteran in August 2010.  The letter informed him of the information and evidence required to substantiate his claim for service connection for the claimed disability since the letter contained a specific subject matter heading explaining what the evidence needed to show to support this claim and listed the three specific requirements for establishing his entitlement to service connection for the claimed disabilities, and explained the downstream disability rating and effective date elements of his claim as well.  The letter also explained VA's duty to assist him in obtaining evidence in support of the claim, indicated what evidence or information was still needed from him, described the type of evidence that would be supportive of the claim, indicated where he could send the needed evidence, discussed the amount of time he had to do it, and indicated the various ways he could contact the RO, such as if he had questions or concerns.  So he has received the required notice concerning the claim.

Moreover, he has not alleged any VCAA notice error.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of his claim.  Thus, absent this pleading or showing, the duty to notify has been satisfied.

VA also has satisfied its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO has obtained all records that he and his representative have identified as possibly pertinent to the claim.  He also had a VA compensation examination in October 2010 (and an addendum in August 2012) for a medical nexus opinion concerning the etiology of his tinnitus, but especially in terms of whether it is attributable to noise exposure during his military service, which he cites as the source or cause of it.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).

Thus, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met.  38 U.S.C.A. § 5103A.

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.

II.  Statutes, Regulations and Case law Governing Claims for Service Connection

Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or at least has since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Diseases initially diagnosed after service may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation.  Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. 488, 494-97 (1997).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The determination as to whether these requirements for service connection are met is based on an analysis of all the evidence of record (medical and lay) and the evaluation of its competency and credibility to in turn determine its ultimate probative value in relation to the other relevant evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any issue material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

III.  Whether Service Connection is Warranted for Tinnitus

Considering the first element of the Shedden analysis, evidence of current disability, tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking."  See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994).  Because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report these observable manifestations. Davidson, supra; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").

So although the Veteran has tinnitus, questions remain as to its etiology - and particularly insofar as whether it was caused or aggravated by his military service or, instead, is the result of other unrelated factors.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).  

In regard to the second element of Shedden, in-service incurrence of a relevant disease or injury, the Veteran's service treatment records (STRs) show his hearing and ears were considered normal at the time of his September 1976 civilian examination.  He began serving on active duty in June 1977.  In May 1980, he reported right ear pain.  There was a positive sign of hyperemia in the right ear. After examination, the diagnosis was sinus drainage.  Although the examiner in reporting the diagnostic assessment indicated that the sinus drainage did not explain the hyperemia, there is no evidence of follow up studies.  

In June 1981, in anticipation of separating from service, his hearing again was considered within normal limits according to audiometric testing.  He did not report tinnitus at the time of service discharge.  His ears were considered normal.  

In reporting his medical history during the October 2010 VA examination, the Veteran indicated he had experienced exposure to excessive noise in the form of mortars.  The records concerning his inservice duties confirm this allegation inasmuch as his separation report lists his military specialty as mortar man.  The Board therefore finds that his lay statements regarding the type and extent of his noise exposure in service are not just competent, but also credible and consistent with the circumstances, conditions and hardships of his service to have probative value and warrant conceding he sustained the type of acoustic trauma alleged in service.  38 U.S.C.A. §§ 1154(a) and (b); 38 C.F.R. § 3.304(d).  

Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis.  The question then becomes whether tinnitus is attributable to the noise exposure he experienced in service or, instead, the result of other unrelated factors.  Establishing exposure to excessive noise in service, does not obviate the need to still have medical nexus evidence linking any current disability to that injury in service.  Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).  And, unfortunately, in this particular instance the most probative - meaning competent and credible - evidence is against his claim for tinnitus.

In reviewing his post-service history, there are no medical records reflecting complaints, diagnosis or findings related to hearing loss or tinnitus until 2010, so for some 29 years (nearly three decades) after the Veteran's military service ended.  At the October 2010 VA examination he reported that he worked in a factory for two years as a civilian where he was provided hearing protection.  He stated that his hearing loss and tinnitus began 5 years previously (2005).  His tinnitus occurred once every two days for a few hours each time.

After considering the Veteran's in-service and post-service medical and occupational histories, the evaluating audiologist in October 2010 concluded first of all that the Veteran did not have hearing loss as defined by VA.  Further, she concluded that the Veteran's tinnitus was unrelated to his military noise exposure.  In explanation, this VA examiner noted that the Veteran's STRs do not contain any reports of tinnitus even though they contain records of numerous visits for other health conditions.  She went on to note that he filed his first claim for disabilities (in August 1981) but he did not mention tinnitus at that time.  She found it reasonable to believe that if the Veteran was experiencing tinnitus he would have included this condition when filing this original claim.  She noted that he reported that his tinnitus only began 5 years ago (2005), which is 24 years after service.  It was her opinion that tinnitus was not caused by or a result of military service.  

In his notice of disagreement (NOD) received in January 2011, the Veteran disputed the audiologist report, in particular, that he stated that his tinnitus began 5 years ago.  He added clarification this by stating that his tinnitus only became worse 5 years previously.

In light of the Veteran's clarifying statements, the RO requested an addendum to the October 2010 VA examination.  Another VA audiologist reviewed the record in August 2012 and she also determined that the Veteran's tinnitus was unrelated to military service.  She noted that the Veteran hearing was considered within normal on audiologic examinations conducted throughout service.  Further, he was issued hearing protection in September 1978, and received medical care for right ear pain in 1981.  However, he failed to report tinnitus on either occasion.  She also noted that at the prior October 2010 VA examination, he originally reported that his hearing loss and tinnitus began 5 years previously(in 2005).  In light of his varying statements regarding the onset of his hearing loss and tinnitus, she doubted the credibility of Veteran.  She stated that his original statements regarding its onset in 2005 must be conceded as the most accurate.  In light of the fact that the Veteran did not report tinnitus in 1978 or in the 1980s; the fact that he did not report tinnitus until seen in 2010; and the fact that he originally reported onset of tinnitus in 2005, she concluded that it was less likely than not that tinnitus was related to military service. 

In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion.  Also, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the even higher Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.).  For non-combat Veterans providing non-medical related testimony regarding an event during service, however, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements and testimony.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  But in cases involving combat and combat-related injury, VA is prohibited from drawing an inference from silence in the STRs.  This inference is not prohibited in non-combat scenarios, as the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the STRs, which is the case in this situation.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  

And, here, the VA compensation examiners that commented unfavorably on the merits of this case took into consideration the Veteran's report of acoustic trauma in service, in his capacity as mortar man, but nonetheless determined the current tinnitus (and hearing loss) is not a consequence, so not a result of that noise exposure in service.  While the audiologists apparently discount the Veteran's credibility, they did not dispute the notion that there was relevant injury (noise exposure) in service in his other job as mortar man.  And, still, they ultimately determined that given the relatively lack of complaints both during service and the length of time after service before tinnitus was reported were reasons enough for concluding his tinnitus is unrelated to the noise exposure in service.  Hence, the opinions were not so much predicated on the absence of documentation of the purported injury in service.  The VA examiners' reasons for concluding against the claim instead are based on other factors, not just unacceptance of the claimed injury or symptoms in service.  

The adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the experts fairly considered the material evidence seemingly supporting the Veteran's position.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995).  The examiners' opinions were based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (wherein the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file).  

And as noted above, in reviewing his post-service history, there are no medical records reflecting complaints, diagnosis or findings related to tinnitus until 2010, when examined by VA, so not until some 29 years after the Veteran's military service ended.  But continuity of symptomatology, not treatment, is the essence of 38 C.F.R. § 3.303(b).  See also Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  So, according to Buchanan, the Board cannot conclude lay evidence lacks credibility simply because it is unaccompanied by any contemporaneous medical evidence, such as treatment records.  But that said, the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, actual evidence that weighs against a party, must not be equated with the absence of substantive evidence).  

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, the Board considers it significant that the Veteran did not report any tinnitus for such an extended period after service.  Unfortunately, it must be pointed out that when initially examined by VA in September 1981 he failed to report tinnitus although he was being examined in conjunction with claims for VA benefits.  Furthermore, VA records show that he received additional VA psychiatric treatment in June and July 1985 for acute withdrawal from PCP and street drugs, and again he failed to report any problems with tinnitus.  So even accepting that he is competent to say he has experienced progressively worsening tinnitus since his military service, the fact that he did not mention or complain about this condition on any earlier occasion tends to refute the notion that he has experienced continuous tinnitus since the noise trauma in service.  See Davidson and Jandreau, supra (both recognizing that medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology).  Furthermore, he reported at the October 2010 VA examination that he was not provided any hearing protection during service.  Again, this is not consistent with the record.  A September 1978 Occupational Health Service report shows that he was placed on a hearing conservation program and was provided hearing protection.  This patent inconsistency in his statements lessens the credibility of his current statements regarding continuity when they are given in the context of attaining monetary benefits or other forms of compensation.  See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

There also is no medical opinion in the file refuting the VA examiners' unfavorable opinions, and the Veteran's unsubstantiated lay statements are insufficient to rebut these opinions given their lessened probative value since, even if competent, they are not also credible.  Consequently, for these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim.  Instead, the preponderance of the evidence is unfavorable, so the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001).


ORDER

The claim for service connection for tinnitus is denied.


____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs