Citation Nr: 1306647 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-41 064 ) 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: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence FINDING OF FACT Tinnitus did not begin during, was not caused by, and is not otherwise related to the Veteran's period of service. CONCLUSION OF LAW Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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. See generally 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in his December 2008 notice of disagreement and October 2009 substantive appeal, the Veteran asserts that he has current tinnitus that was a result of in-service noise trauma from working on helicopters, and that he has had tinnitus since his period of service. Service personnel records reflect that the Veteran's military occupational specialty was as an air traffic control radar repairman. Service treatment records reflect that the Veteran was hospitalized for 15 days in January 1974 for Vincent's angina. In June 1974, the Veteran was seen for severe sensorineural hearing loss of the right ear. The Veteran reported at the time that he thought he developed such hearing loss one to one-and-a-half months before, but hesitated to report to sick call because he liked his job. Another June 1974 record reflects that the Veteran had hearing loss in the right ear of two months duration, and it was noted that he worked as a helicopter mechanic and had been hospitalized in January for fevers and Vincent's angina. The Veteran was noted to have had almost complete hearing loss in the right ear, and it was noted that he noticed hearing loss on about April 15, and that it had developed over a two-day period with a cold. There was noted to be no dizziness and no tinnitus, and the diagnosis was sudden onset hearing loss in the right ear of unknown etiology. The Veteran's September 1974 report for separation from service and accompanying report of medical history reflects that he had a history of dizziness, ear nose and throat trouble, and hearing loss, and that the Veteran referred to hearing loss first noted in January 1974, associated with vertigo. It was also noted that the Veteran had been seen for the problem with a diagnosis of moderate severe nerve loss in the right ear with resultant permanent, but not progressive, hearing loss. Left ear audiogram at the time was normal, and there was no notation of tinnitus, providing evidence against this claim. A December 1974 post-service audiological examination revealed that the Veteran had hearing within normal limits for the left ear but a profound sensorineural hearing loss in the right ear. On February 1975 VA examination, the Veteran was noted to have had a negative examination of the left ear. On March 1979 VA examination, the Veteran was again noted to have had complete sensorineural hearing loss in the right ear and normal hearing in the left ear. Tinnitus was not on noted any of these examinations, providing more evidence against this claim. The Veteran filed his claim of service connection for tinnitus in July 2008, and the report of an August 2008 VA audiological examination reflects that the Veteran complained of right ear hearing loss and left ear tinnitus. Importantly, the Veteran himself reported constant tinnitus of the left year, with an onset of roughly 10 years prior (around 1998, years after service, providing highly probative evidence against his own claim that he has had this problem since service or that it is connected to service). The diagnosis was normal hearing left ear and no hearing whosoever of the right ear. The report of a November 2008 VA audiological examination reflects that the audiological examiner reviewed the claims file, including service and post-service treatment records. The examiner noted the records documenting hearing loss, and that on September 1974 separation examination and in February 1975, left ear hearing was within normal limits with no tinnitus noted. The examiner also noted tinnitus was not claimed in March 1979, and that left ear tinnitus was noted on August 2008 VA examination. On examination, the Veteran reported a history of noise exposure in service from 1973 to 1974 working on helicopters on flight lines. He also reported constant left ear tinnitus, with an onset 20 years prior, which had gradually gotten worse over the years, and the Veteran noticing the tinnitus more and more seven or eight years prior. After reviewing the record and examining the Veteran, the examiner opined that the Veteran's left-sided tinnitus was not caused by or a result of military service. The examiner noted that the Veteran's service treatment records did not note tinnitus at any time, and that his compensation and pension examinations did not note tinnitus until August 2008. In his December 2008 notice of disagreement, the Veteran asserted that he was exposed to unprotected acoustic noise trauma working on helicopters, and that his tinnitus was constant and started in service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be denied. The Board acknowledges the Veteran's reports and diagnoses of left ear tinnitus on the August 2008 and November 2008 VA examinations, and his in-service duties as an air traffic control radar repairman working on helicopters. However, even assuming that the Veteran had exposure to very loud noise in service as a helicopter mechanic, a preponderance of the competent, credible, and probative evidence reflects that tinnitus did not begin during, was not caused by, and is not otherwise related to the Veteran's period of service, and did not begin until many years after service. Neither in-service tinnitus nor continuity of tinnitus symptoms following service is shown by the record. While profound right ear hearing loss was consistently noted in service, beginning in June 1974, the Veteran's left ear hearing was consistently noted to have been normal, and tinnitus of the left ear was never noted in service, including at the time of the Veteran's September 1974 separation examination. Moreover, it was specifically noted in June 1974 that there was no tinnitus. Also, despite having post-service ear and hearing examinations in December 1974, February 1975, and March 1979 the Veteran was never noted to have reported any tinnitus, no such tinnitus was otherwise noted, and left ear hearing was noted to have been normal. The earliest assertion of any tinnitus in the record is the Veteran's July 2008 claim, filed over 30 years after his separation from service. The Board acknowledges the Veteran's assertion in his December 2008 notice of disagreement that his current tinnitus began in service. However, the Veteran's statements regarding the onset of his current tinnitus have been inconsistent and conflicting. In service in June 1974, there was specifically noted to have been no tinnitus, and the Veteran was not noted to have ever reported any tinnitus during his hearing examinations in December 1974, February 1975, and March 1979, or until more than 30 years after his separation from service. Furthermore, during his August 2008 VA examination, the Veteran reported that his tinnitus had an onset of roughly 10 years prior, and during his November 2008 VA examination he reported that his tinnitus had an onset 20 years prior and had gradually gotten worse over the years, with the Veteran noticing the tinnitus more and more seven or eight years prior. The Veteran first asserted that his tinnitus had began in service, which was more than 30 years prior, in his December 2008 notice of disagreement, following the December 2008 rating decision denying his service connection claim for tinnitus. Given the above, the Board finds the Veteran's assertion that his tinnitus began during and has continued since service not to be accurate. Furthermore, the only competent and probative evidence regarding whether there exists a medical nexus between the Veteran's left ear tinnitus and service is the opinion of the November 2008 VA examiner, which was that the Veteran's left-sided tinnitus was not caused by or a result of military service, as the Veteran's service treatment records did not note tinnitus at any time, and his compensation and pension examinations did not note tinnitus until August 2008. The examiner's opinion was based on examination of the Veteran, including consideration of the Veteran's given history and his exposure to noise in service working on helicopters on flight lines, as well as a thorough review of the record and notation of audiological and ear examination records. Furthermore, the Board finds the examiner's rationale to be an adequate basis for his opinion, particularly given the Veteran's numerous in-service and post-service examinations pertaining to his ears, hearing loss, and related symptomatology, as well as the length of time between the Veteran's separation from service and the initial notation of hearing loss in the record. See Maxson, 230 F.3d 1330 (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Moreover, there is no competent and probative opinion evidence of record indicating that any tinnitus is related to the Veteran's service, and neither the Veteran nor his representative have identified any such evidence. The Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. However, as discussed above, to the extent that the Veteran asserts that his left ear tinnitus began in service and continued to the present, the Board finds such assertion not to be accurate Additionally, a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, while the Veteran might believe that his current tinnitus is in some way medically related to in-service noise exposure, or to service in any other way, this question of causation extends beyond an immediately observable cause-and-effect relationship, and is one that requires medical expertise to answer. Accordingly, the Board finds that the claim for service connection for a tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in August 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical treatment records have been obtained. Also, the Veteran was provided VA examinations in August 2008 and November 2008, and a VA opinion in November 2008. These examinations and the opinion were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal. The examination reports were based on examination of the Veteran by examiners with appropriate expertise, and the November 2008 report and opinion was based on a review of the entire claims file, with citation to the relevant medical records. The examination reports and opinion provided were thorough and adequate, and provided a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges the contentions of the Veteran's representative in a February 2012 brief presentation that the November 2008 VA examiner's opinion only acknowledged subjective tinnitus in the Veteran and relied, in part, on the fact that service treatment records did not contain any notation of tinnitus. However, while the VA examiner stated that he was unable to match tinnitus on testing, the examiner did not assert that the Veteran did not have subjective tinnitus of the left ear, and noted that left ear tinnitus had been noted on the previous VA examination in August 2008. Also, as discussed above, the November 2008 VA examiner's rationale that service treatment records did not note tinnitus at any time, and his compensation and pension examinations did not note tinnitus until August 2008, is an adequate basis for his opinion given the Veteran's numerous in-service and post-service examinations pertaining to his ears, hearing loss, and related symptomatology, as well as the length of time between the Veteran's separation from service and the initial notation of hearing loss in the record. Therefore, the Board finds that the November 2008 VA examiner's opinion, together with the evidence as a whole, provides an adequate basis to make a decision on the Veteran's appeal, and that remand for another VA examination and opinion is not warranted. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs