Citation Nr: 1306297 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 11-07 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1957 to March 1959. This case comes before the Board of Veterans' Appeals (Board) an appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record does not show tinnitus to be etiologically related to a disease, injury, or event in service, to include other service-connected disability. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, and 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Board finds that a VCAA letters dated in February 2010 fully satisfied the notice requirements of the VCAA, and that the Veteran's claim was initial adjudicated in May 2010. Thus, the notice letter was timely. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board notes that the claims file contains an August 2004 response from the Personnel Information Exchange System, which indicated that the Veteran's service records were not available as they were associated with a fire that occurred at the National Personnel Records Center on July, 12, 1973, and may have been destroyed. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In an August 2004 letter, the Veteran informed VA that other records concerning his medical treatment during active duty may have been destroyed long ago. In a February 2010 letter, the Veteran also informed VA that he had no additional evidence to submit in support of his claim. The Board finds no indication that other available, outstanding service treatment records exist. Therefore, the Board concludes that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations in connection with this claim in January 2010 and September 2012. Additionally, an addendum was provided in April 2010. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination reports and opinions to be thorough and complete. Therefore, the Board finds the examination reports and opinions are sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In July 2012, the Board remanded this case for further development. Specifically, this remand instructed the RO to obtain an etiology opinion concerning the Veteran's tinnitus. The requested examination was performed in September 2012. In offering her opinion, the examiner discussed the nature of hearing loss and tinnitus; she related that although both disabilities have the potential to spring from similar causes, hearing loss disorders do not cause tinnitus, and tinnitus does not cause hearing loss disorders. As such, the examiner addressed possible interplay between these two disorders. The Board finds that the purpose of the prior remand has been fulfilled, and there has been substantial compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of an established service- connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 - 47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case 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 give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran's service personnel records reflect that he served on active duty as a single-rotor helicopter mechanic. On VA auditory compensation and pension examination in March 2005, the examiner reported that the Veteran denied experiencing tinnitus. The report further indicates that while the Veteran served as a helicopter mechanic and crew chief, he did not notice a problem with his hearing until 2001. In January 2010, the Veteran stated that he heard a ringing in his ears. On VA auditory compensation and pension examination in January 2010, the Veteran reported experiencing occasional bilateral tinnitus that was usually only noticeable at night. It was described as a roaring sound that the Veteran listened to until he fell asleep. In an April 2010 addendum, the examiner remarked that although hearing loss and tinnitus commonly are present together, they are not necessarily mutually occurring. She wrote that hearing loss and tinnitus have varying causes to include certain medications, stress, anxiety, nicotine, sodium, and excessive caffeine, among other causes. She said that hearing loss does not cause tinnitus, and tinnitus did not cause hearing loss. She opined that it was not at least as likely as not that the Veteran's tinnitus was secondary to his service-connected hearing loss. On VA audiology examination in September 2012, the Veteran reported constant bilateral tinnitus. It was noted that the onset of the tinnitus was about eight or nine years previously. The Veteran reported that there was no precipitating event for the tinnitus. The examiner opined that it was less likely than not that the Veteran's tinnitus was a symptom associated with his hearing loss, as hearing loss and tinnitus were not necessarily mutually occurring and had varying causes. She also opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. She noted that at a VA compensation and pension examination in 2005, the Veteran denied experiencing tinnitus. She further noted that in January 2010, the Veteran first reported the onset of tinnitus, and it was described as occasional. The examiner opined that based on the evidence of record, the Veteran's tinnitus began sometime between 2004 and 2010, and as such, did not experience tinnitus for 45 years following active duty. She reiterated that it was less likely than not that the Veteran's tinnitus was related to his active duty. Analysis With regards to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no medical opinion of record relating tinnitus directly to the Veteran's active duty service. The September 2012 VA examiner opined that it was less likely as not that the Veteran's tinnitus was a result of his active duty service, as the Veteran did not report symptoms of tinnitus for approximately 45 years after his active duty service. Furthermore, as noted in the VA examination reports, the Veteran himself has stated that his tinnitus did not begin any earlier than 2001. As such, no continuity of symptomatology has been asserted. Therefore, as there is no medical or credible lay evidence of record relating tinnitus directly to his active duty service, service connection cannot be warranted on a direct basis. See Shedden, supra. With regard to establishing service connection on a secondary basis, the Board notes that to the extent that the Veteran has tinnitus that was caused or aggravated by his service-connected hearing loss disability, the only medical opinions of record on the matter indicate that it is less likely as not that the Veteran's tinnitus is secondary to his hearing loss disability. The VA audiologist specifically opined in both 2010 and 2012 that, clinically, hearing loss did not cause tinnitus, and tinnitus did not cause hearing loss. She explained that while they are often experienced together, they are separate disabilities. With regard to aggravation, the examiner opined that the Veteran's tinnitus was not symptomatically related to his hearing loss disability. Therefore, as there is no medical evidence of record showing that the Veteran has a tinnitus that is caused or aggravated by his service-connected hearing loss disability, service connection cannot be established on a secondary basis. The Board acknowledges the Veteran's contentions that he has tinnitus as a result of his active duty or his service-connected hearing loss disability. However, the most probative evidence of record does not support this contention. The Veteran can attest to factual matters of which he had first-hand knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). As such, the Veteran is certainly competent to report ringing in his ears. However, as noted above, the Veteran has not asserted a continuity of symptomatology-by his own account, he did not begin to experience problems until 2001 at the earliest. Concerning any interplay between tinnitus and a hearing loss disability, the Veteran as a lay person has not been shown to be capable of making medical conclusions. While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Therefore, while the Board has considered his lay assertions, the Board ultimately places more weight on the opinion of the VA examiner for the reasons discussed above. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for tinnitus must be denied on both direct and secondary bases. See 38 U.S.C.A §5107 (West 2002). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss disability, is denied. ____________________________________________ DAVID L WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs