Citation Nr: 1308366 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-30 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 2002 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manchester, New Hampshire. In August 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in October 2011 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the Board's remand and the Board will proceed to adjudicate the appeal. In its October 2011 remand, the Board also directed that the RO further develop the issues of entitlement to service connection for a bilateral elbow disability and entitlement to service connection for a right shoulder/arm disability. In an August 2012 rating decision, the RO granted entitlement to service connection with regard to those issues; thus, they are no longer for appellate consideration. FINDINGS OF FACT 1. The Veteran is less than credible with regard to any statement that the onset of a current tinnitus disability was in active service. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has tinnitus causally related to active service. 3. The clinical evidence of record is against a finding that the Veteran has tinnitus causally related to active service. CONCLUSION OF LAW Tinnitus was not incurred in, or aggravated by, active service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in January 2007 and June 2008 and the claim was readjudicated, most recently in an August 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), medical records, and the statements of the Veteran in support of his claim, to include his testimony at a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. A VA examination with opinion was obtained in December 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination/opinion is adequate, as it is predicated on an interview with the Veteran regarding his symptoms, a review of the claims file to include the Veteran's treatment records, and includes a rationale for the opinion proffered. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. 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 of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that he has tinnitus as a result of active service. The Veteran is considered competent to report ringing or roaring in the ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Further, the Board acknowledges that the absence of any corroborating medical evidence supporting his assertions, in and of itself, does not render his statements incredible, but that such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The Board finds that acoustic trauma is consistent with the Veteran's service. The Veteran's DD 214 reflects that he was awarded the Combat Action Ribbon (Iraq). It also notes that his primary specialty in service was as a rifleman. Thus, the Board finds that acoustic trauma is consistent with the Veteran's service as a rifleman and with his service in Iraq. As the Board has found that the Veteran was exposed to acoustic trauma in service, consideration of the combat presumption under 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) is not necessary. Nevertheless, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). The statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Despite the Veteran's acoustic trauma in service, the Board finds, for the reasons noted below, that entitlement to service connection for tinnitus is not warranted. Importantly, the Veteran has not consistently contended that his tinnitus symptoms first arose during service. He testified that while in service, he had tinnitus for 30 seconds after an incident. In this regard, the Board notes that an August 2007 VA clinical record reflects that the Veteran reported being around explosions in service. However, when listing his symptoms following the explosion, he noted "being dazed, confused or "seeing stars." He did not report tinnitus. The Veteran also testified that he sometimes gets tinnitus but he does not know if there is a certain stimulant for it. The Veteran reported to the December 2011 VA examiner, as noted below, that he has had tinnitus throughout his life. The Veteran's STRs are negative for any complaints of tinnitus. His July 2003 DD Form 2796, Post Deployment Health Assessment, reflects that he denied having tinnitus and denied that it had developed during the deployment. The Veteran's August 2005 DD 2796 also reflects that he denied tinnitus and denied that it had developed during the deployment. The evidence does not reflect that the Veteran had further duty in a combat area after his 2005 deployment. The claims file includes a February 2006 VA examination report. It reflects that the Veteran reported that he first noticed a change in hearing acuity in Iraq. The report reflects that there "is no history of tinnitus." The Veteran separated from active service in September 2006. The Veteran filed a claim for tinnitus in October 2006; however, a December 2006 VA primary care outpatient initial evaluation note, which reflects that the Veteran was a new patient, notes that the Veteran denied tinnitus. Initially, the Board notes that there is no competent clinical opinion that the Veteran has tinnitus causally related to active service. A December 2011 VA examination report is of record. The examiner noted that the Veteran's military occupational specialty (MOS) concedes a high probability of noise exposure, but it does not concede a high probability of hearing loss. It was noted that the Veteran had normal hearing upon separation. (See July 2006 Hearing conservation data record.) The examination report further reflects that the Veteran reported that two times a month, he experiences bilateral tinnitus that sounds like a buzz. He reported that he has noticed it "throughout his life". The clinician opined that it is less likely than not that the Veteran has tinnitus caused by or a result of military noise exposure. He stated that there was no noise-induced hearing pathology which exists for which tinnitus can be medically linked. In the absence of a competent clinical opinion, service connection may be warranted in situations where there is credible competent evidence of continuity of symptomatology since service. The Board finds that the evidence is against a finding of tinnitus since service, to include as due to acoustic trauma or physical trauma. The Board acknowledges the Veteran's statement in his VA form 9, dated in July 2007, in which he stated that "one reason I did not say I had ringing in my ears is that I was told I would be a medical hold and not get discharged on my original date." The Board finds that this statement is less than credible. While the Veteran may not have reported tinnitus upon discharge, he specifically denied tinnitus in 2003 and 2005, on both post deployment health assessments. A report of tinnitus at those times would not reasonably have led to a "medical hold" and delay of discharge as the Veteran was still more than a year from separation. In addition, he did complain of hearing acuity problems in February 2006, prior to discharge. The Board finds that if the Veteran had had tinnitus in service, it would have been reasonable for him to have reported it, and for it to have been noted, when he sought examination and treatment for an alleged hearing acuity problem in February 2006. The Board also finds that if the Veteran had tinnitus due to an explosion, it would have been reasonable for him to have reported it when he was examined for a traumatic brain injury in August 2007, or when having an initial outpatient evaluation in December 2006. He did not do so. As noted above, the Veteran is competent to relate his symptoms, such as ringing or buzzing in the ears. In addition, he may believe that he has a tinnitus due to service. However, the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. Ringing or roaring in the ears may be related to numerous conditions, such as age-related hearing loss, acoustic trauma, a build-up of earwax, medicines, blood flow, nerve problems, and/or infections. Moreover, it may be chronic or intermittent. Based on the foregoing, the Board finds that an opinion by the Veteran as to causation does not constitute competent medical evidence and lacks probative value. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Regardless of competency, the Board finds the Veteran less than credible. In the present case, the Board finds, based on the record as a whole, that the Veteran is less than credible with regard to any statement that he has had chronic tinnitus which began in service or that he has had a continuity of chronic tinnitus since separation from service. While in service, the Veteran denied tinnitus, or failed to report it, on several occasions (e.g. July 2003, August 2005, February 2006). In addition, he denied it in December 2006, and reported to the December 2011 VA examiner that he has had intermittent tinnitus throughout his life. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The Board appreciates the honorable service of the Veteran, however it finds that service connection is not warranted in the absence of demonstration of credible continuity of symptomatology, a competent clinical opinion relating a current diagnosis of tinnitus to service, or competent credible evidence of tinnitus within one year after separation. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs