Citation Nr: 1303471 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-14 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from August 1965 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in October 2008. A statement of the case was issued in April 2009, and a substantive appeal was received in April 2009. On a form received in April 2009, the Veteran marked the appropriate line to indicate that he wanted a hearing before the Board at the RO. In July 2009, the Veteran was informed about an RO hearing, instead. An August 2009 Decision Review Officer (DRO) conference report shows that the Veteran's representative had made an appearance and had tried to contact the Veteran to inform him that the hearing scheduled in September 2009 was not a hearing before the Board at the RO, but rather a DRO hearing. It was agreed that the DRO hearing would be held as scheduled. Nevertheless, the Veteran failed to appear. In September 2011, the RO informed the Veteran in that a hearing before the Board at the RO was scheduled for October 2011. The Veteran failed to appear. FINDING OF FACT Tinnitus was not manifested during the Veteran's active duty service or for many years thereafter, nor is tinnitus otherwise related to such service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2008. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Duty to Assist VA has obtained service and VA treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran a VA examination in May 2008. The Veteran was scheduled for another VA examination in September 2009 that was cancelled by Medical Administration Service (MAS). The VA examination was rescheduled in February 2010, but the Veteran failed to report. It appears to the Board that the Veteran is in receipt of Social Security Administration benefits based on his age. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The issue before the Board involves a claim of entitlement to service connection for tinnitus. The Veteran asserts in his claim that he was a crash rescue fireman in Vietnam, and had been exposed to jet engine noise and generators with no hearing protection. The Veteran's DD 214 reveals that his military occupational specialty (MOS) was a Fire Protection Specialist. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when 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). Service treatment records are silent for any complaints, treatment, or diagnosis of tinnitus. On exit examination dated in November 1969, the Veteran's ears were clinically evaluated as normal and no tinnitus was noted. When the Veteran was afforded a VA examination in May 2008, he denied having tinnitus. As a result, the VA examiner did not render an opinion. A June 2008 VA treatment record also shows that he again denied tinnitus. By statement received in October 2008, the Veteran asserted that he had miscommunicated with the VA examiner and clarified that at the time of the VA examination, he did not have ringing in the ears. However, he has had it since his time in service. As noted above, the Veteran was scheduled for two examinations, which were both cancelled. The Veteran failed to appear for the most recent examination. Accordingly, the decision will be based on the evidence of record. In a claim received in March 2008, the Veteran reported that tinnitus began in 1966. The Veteran is certainly competent to report the symptoms of tinnitus. However, after a review of all the lay and medical evidence, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. Service treatment records show treatment for other disabilities, but not tinnitus. While the Veteran did have the opportunity to seek out medical care for tinnitus, his failure to do so is inconsistent with his actions in relation to other medical problems. Additionally, on exit examination in November 1969, he did not report ringing in his ears. The Board notes that if the Veteran had in fact had tinnitus since 1966, it is reasonable to expect that he would have reported such to military medical personnel upon separating from service. After all, the express purpose of the separation examination was to document any ongoing service-related problems. Thus, the Veteran's current assertions are inconsistent with what he reported, or failed to report, at the time of separation from service. In regard to the Board's obligation to address credibility, it is also noted the Veteran had submitted a claim for other VA benefits based on other disabilities in January 1970. However, he did not include tinnitus in that claim. This suggests that the Veteran did not believe he had tinnitus related to service acoustic trauma at that time as the Board believes it reasonable to assume that the Veteran would have included a tinnitus claim with his other earlier claim. It is also significant that the March 1970 VA examination report associated with the earlier claim for benefits did not include any complaints of tinnitus, although there were findings related to the ears. The Veteran did not file his claim until 2008 although the record shows that he knew how to file a VA claim. The Veteran's actions are inconsistent with his current assertion that he had tinnitus from service on. Moreover, while not determinative by itself, it is also significant that there is no evidence of tinnitus for approximately 39 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs