Citation Nr: 1302178 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-35 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from November 1968 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in July 2011. A transcript of the hearing is associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board in November 2011, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT Tinnitus is not etiologically related to noise exposure sustained in active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012). As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that prior to the initial adjudication of the claim, the Veteran was mailed a letter in July 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The July 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service medical records and service personnel records are of record, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he has tinnitus as a result of hazardous noise exposure sustained in active service. Specifically, the Veteran has reported that he was exposed to hazardous noise in the form of jet engine noise and gunfire. The service medical records are negative for treatment for or a diagnosis of tinnitus while the Veteran was in active service. In conjunction with a prior claim of entitlement to service connection for bilateral hearing loss disability, the Veteran was afforded a VA audiological evaluation in February 2006. At that time, the Veteran denied experiencing tinnitus and the examiner did not provide a diagnosis of tinnitus. In September 2008, the Veteran was afforded a VA audiological evaluation. At that time, the Veteran reported active service noise exposure in the form of aircraft noise and civilian noise exposure in the form of motocycle noise and lawn mower noise. The Veteran reported that he experienced recurrent tinnitus that had its onset approximately six months prior. He reported that the episodes of tinnitus occurred a few times a month and lasted anywhere from seconds to minutes at a time. He reported that the tinnitus occured randomly. The examiner diagnosd intermittent, subjective tinnitus of an indeterminate location. The examiner opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma. The examiner noted that the Veteran reported his tinnitus to have had its onset only six months prior, decades after his separation from active service. Additionally, the examiner noted that brief and occassional tinnitus that occurred randomly was not consistent with the recurrent and pervasive tinnitus typically associated with noise exposure. The examiner further noted that it was possible that the Veteran's tinnitus was normal/non-pathologic in nature, but that he could not make a determination of that without resorting to speculation. In December 2011, the Veteran was afforded another VA audiological evaluation. At that time, the Veteran reported experiencing tinnitus that had its onset approximately eight to ten years prior. He reported that the tinnitus was intermittent, in that it occured only a few times per month, and lasted for 10-15 minutes per episode. The examiner diagnosed tinnitus and noted that he concurred with his September 2008 opinion that the Veteran's tinnitus was less likely as not caused by or a result of in-service noise exposure. The examiner again noted the length of time between the Veteran's separation from active service and his reported onset of tinnitus and again noted that tinnitus that is occasional and random was inconsistent with the more recurrent and pervasive tinnitus typically associated with noise exposure. The examiner also opined that it was less likely as not that the Veteran's tinnitus was related to his service-connected bilateral hearing loss disability. The examiner noted that like tinnitus resulting from noise exposure, tinnitus resulting from hearing loss was typically recurrent and pervasive and the Veteran's report of occassional, random tinnitus was inconsistent with that. A review of the record shows that the Veteran receives audiological treatment at the VA Medical Center and from private providers. A review of the VA Medical Center and private treatment notes of record is negative for any indication that the Veteran's tinnitus is related to his noise exposure sustained in active service. At his July 2011 Board hearing, the Veteran reported that he had actually experienced tinnitus since his active service, but that he just dealt with it and did not complain until it became overly bothersome. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of tinnitus. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board notes that while the Veteran reported at his July 2011 Board hearing that he had experienced tinnitus since active service, that statements is inconsistent with the other evidence of record. At a February 2006 VA audiological evaluation for bilateral hearing loss disability, the Veteran reported that he did not experience tinnitus. At his September 2008 VA audiological evaluation, the Veteran reported that he had only experienced tinnitus for the past six months. At his December 2011 VA audiological evaluation, the Veteran reported that he had experienced tinnitus for approximately eight to ten years. Those statements are not only inconsistent with the Veteran's July 2011 statements at his Board hearing, but they are inconsistent with one another. Additionally, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss disability in October 2005. There is no indication from the record that the Veteran filed a claim of entitlement to service connection for tinnitus at that time, or until several years later. Because of the inconsistent statements provided by the Veteran regarding the onset of his tinnitus and the absence of a claim of entitlement to service connection for tinnitus until decades after his separation from active service, the Board finds that the Veteran's statements that he has experienced tinnitus since service are not credible. In sum, the Veteran's reports of experiencing tinnitus since active service are not credible and a VA examiner has competently opined that the Veteran's tinnitus is not related to his active service or service-connected bilateral hearing loss disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for tinnitus is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs