Citation Nr: 1309872 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-29 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus, to include as being secondary to, or aggravated by service-connected hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from February 1960 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied the claim of entitlement to service connection for tinnitus. The Veteran submitted a Notice of Disagreement (NOD) in September 2008; in June 2009, the RO issued a Statement of the Case (SOC); and in June 2009, the Veteran submitted a timely substantive appeal (VA Form 9). This matter was previously remanded by the Board for further development in April 2011, June 2012, and most recently, in February 2013. The Veteran's electronic claims file on Virtual VA was reviewed in connection with this appeal. 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). FINDINGS OF FACT Tinnitus is not shown to be related to the Veteran's active duty service, and it is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. § 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely April 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The letter also explained how VA determined disability ratings and effective dates pursuant to the provisions under Dingess. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording the Veteran multiple VA medical examinations in furtherance of the claim. To that end, 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 the VA examinations adequate for the purpose of deciding the issue of service connection for tinnitus. They contains sufficient information, to include that supplied by the Veteran, for a determination that tinnitus is unrelated to service, both on direct and secondary bases. The examination reports together with other evidence of record also contains sufficient information to deduce that there is no causal relationship between tinnitus and service-connected hearing loss. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, the Veteran's statements, private medical records, and VA clinical medical records. For the foregoing reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 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). Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) ; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran contends that his tinnitus is related to in-service noise exposure, to include as due to his military occupational specialty of military policeman. He alternatively argues that it is secondary to his service-connected bilateral hearing loss disability. The Board notes that this claim was remanded in April 2011, June 2012, and February 2013, in order to obtain VA audiological examinations and/or etiology opinions. The Veteran's service treatment records are silent as to complaints, treatment, or diagnoses relating to tinnitus, providing evidence against the claim. Following service, there are no documented complaints, treatment, or diagnoses relating to tinnitus until March 2008 and August 2008, the date of his claim for service connection for tinnitus and the date of his associated VA Audiology examination, respectively. An October 2001 VA Audiology Consult note reflects that the Veteran denied tinnitus. Likewise, in March 2008, the Veteran's private audiologist submitted a letter detailing his hearing loss (and providing a nexus as to that disability), and expressly noted that the Veteran denied having ringing in his ears at the time of the audiological evaluation. See March 2008 Letter From V.M.C., MA., CCC/A. The Veteran underwent a VA Audiological Examination in August 2008, at which time it was noted that he denied tinnitus symptoms upon VA Audio Consult in 2001, and again upon private examination in 2008. Nevertheless, his current complaints included tinnitus due to military noise exposure. The examination report noted that the Veteran was a non-combat Veteran who served as a clerk typist and policeman in-service. Following service, the Veteran was employed at a steel plant in sales. With respect to the date and onset of tinnitus, the Veteran stated that it began during service. After review of the claims file and the Veteran's statements regarding onset/etiology, the VA examiner opined that tinnitus (and hearing loss) was less likely than not caused by or the result of acoustic trauma in-service. With respect to acoustic trauma, the examiner noted that the current level of hearing loss was "too severe" to be due to the military acoustic trauma described by the Veteran; he further opined that the tinnitus was not related to service as the Veteran denied having tinnitus at prior hearing evaluations in 2001 and 2008. In his September 2008 Notice of Disagreement, the Veteran again reported that he was exposed to "unprotected acoustic noise trauma," and that he had no post-service noise exposure working in sales at a steel plant. VA outpatient treatment records dated from 2008 to 2009 are silent as to complaints, treatment, or diagnoses of tinnitus. An April 2011 VA Audio Consult note reflects complaints of tinnitus. Also, in April 2011, the Board remanded the Veteran's claim in order to obtain a VA medical opinion to address whether tinnitus was secondary to service-connected hearing loss. In May 2011, a private audiologist submitted a letter indicating that the Veteran had been fitted for a hearing aid in 2009, and that he had complained of tinnitus at that time. No opinion as to etiology was provided. See Venice Hearing Aids Letter, May 2011. The Veteran again reported tinnitus upon private examination in May 2011. See Internal Medicine Treatment Note, Dr. R.L.D., M.D., May 2011. He was diagnosed with mild tinnitus. In September 2011, the Veteran underwent another VA Audiological examination; the Veteran's claims file was reviewed. The VA examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure. The examiner's rationale included the fact that the Veteran's description of the onset of tinnitus had varied since he was evaluated by VA in 2001, and privately in 2008. While the Veteran currently complained of having tinnitus since service, the examiner stated that the post-service VA and private audiometric records did not support the current claim. The examiner concluded by noting that the onset of tinnitus "is not consistent with noise induced hearing trauma during military service." The examiner did to provide an opinion as to whether the tinnitus was secondarily related to service-connected hearing loss. In June 2012, the Board again remanded this claim in order to obtain a VA opinion which addressed service connection on a secondary basis. In November 2012, the Veteran underwent another VA Audiological examination; the claims file was reviewed. With respect to onset of tinnitus, the Veteran reported that he had experienced ringing in his ears constantly since "forever," which he further defined as "since the service." The VA examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran's self-report of constant tinnitus since service was not consistent with the medical records. It was pointed out that the Veteran had denied tinnitus upon VA and private audiological examinations in 2001 and 2008, respectively. During VA audiological examinations in 2008 and 2011, the Veteran reported having tinnitus since service. On present examination, he again reported tinnitus since service. The VA examiner explained that the onset of tinnitus was essential in drawing a nexus between the current complaint and military service; as such, there was no evidence to support the Veteran's claim that he had experienced tinnitus since service. The examiner stated that there was greater evidence to support that the Veteran's had a tinnitus onset of more recent years, rather than since military service. He explained that the medical records clearly documented a time when the Veteran did not have tinnitus (2001 and 2008), to a time when it was intermittent (August 2008 VA Audiological examination), to a time when the tinnitus was constant (presently). This progression, he noted, is not likely related to noise exposure that occurred in service in 1960. As the November 2012 VA examiner once again failed to address whether the Veteran's tinnitus was related to service-connected hearing loss, the Board remanded the claim in February 2013 for an opinion on secondary service connection. That opinion was obtained in February 2013. The February 2013 VA examiner reviewed the Veteran's claims file and opined that tinnitus was not caused by or a result of military service; nor was it proximately due to, the result of, or aggravated by his service-connected hearing loss. The VA examiner stated that the Veteran's tinnitus was induced by advancing age and complicated by medications needed to combat his current heart and vascular diseases. The examiner provided medical treatises in support of his conclusion, noting that multiple medications, as well as heart and blood vessel diseases, were known to cause tinnitus. Analysis First, the Board finds that the currently diagnosed tinnitus disorder is not directly related to service. The Veteran has indicated at times (e.g., during August 2008, September 2011, and November 2012 VA Audiological examinations) that his tinnitus has been continuous since service. At other times, (e.g., during an October 2001 VA Audio Consult and private audio examination in March 2008), he has denied tinnitus or ringing in his ears. The Veteran is certainly competent to report that he has experienced ringing in his ears, or tinnitus, continuously since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears or tinnitus is capable of lay observation); see also, Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, because the Veteran has been inconsistent in his reporting regarding the onset of symptoms, and because the service treatment records do not reflect complaints of tinnitus, and as there are no records dated close in time to service to indicate symptoms consistent with tinnitus (while not solely determinative, however), the Board concludes that the Veteran is not accurate in his description of the onset of tinnitus and that symptoms of tinnitus began nearly 50 years after service separation. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence); Caluza v. Brown, 7 Vet. App. 498 (1995) (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). As such, the Board finds that tinnitus did not become chronic in service and that there has been no continuity of symptomatology between service and the present. To the extent that the Veteran's lay statements regarding continuity of tinnitus are credible, those statements are outweighed by adverse medical opinions. Indeed, August 2008, September 2011, November 2012, and February 2013 VA examiners all concluded that the Veteran's tinnitus was not caused by or a result of military service (to include noise exposure). The Board accords these medical opinions great probative weight because the findings contained therein are based on the evidence of record and are fully supported by rationales. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). In this regard, all four VA examiners noted the Veteran's inconsistent statements as to onset; the lack of in-service findings (although not determinative, alone); the post-service treatment (or lack thereof until 2008); and the lengthy gap of time between service and the first documented complaints of tinnitus. Based on these findings, the February 2013 VA examiner expressly attributed the Veteran's progression of tinnitus to age and medications taken for (non-service connected) heart/vessel disabilities; the November 2012 VA examiner opined that there was greater evidence in the record to support the conclusion that the Veteran did not have tinnitus since service and that the documented progression of tinnitus was not likely related to in-service noise exposure; and the September 2011 opined that the onset of tinnitus was not consistent with noise induced acoustic trauma service. Notably, there are no medical opinions of record to the contrary. In sum, because tinnitus did not become chronic in service, because there has been no continuity of symptomatology since service, and because the competent and credible evidence of record does not show a nexus between tinnitus and service, service connection for tinnitus on a direct basis is denied. 38 C.F.R. § 3.303. The Board next finds that tinnitus is not due to or aggravated by the service-connected hearing loss . 38 C.F.R. § 3.310; Allen, supra. Finding such a nexus, as with direct service connection, would require medical expertise, which the Veteran is not shown to possess. Thus, his representations regarding such a link carry limited probative weight. See 38 C.F.R. § 3.159(a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). The only medical opinion regarding a link between tinnitus and the service-connected hearing loss and tinnitus is against the claim. Indeed, the February 2013 VA examiner expressly stated that tinnitus was not "proximately due to, the result of, or aggravated by his service-connected bilateral hearing loss." Rather, the examiner explained that the Veteran's tinnitus was age induced and aggravated by medications taken for current heart and vascular disease. The Board finds this opinion to be highly probative as to the issue of nexus since the examiner thoroughly reviewed the claims file; considered the Veteran's statements concerning onset and continuity; and based his conclusion, in part, upon medical literature which was included in the addendum opinion. See Prejean, supra. The record contains no other competent and credible medical opinion showing a causal link between the service-connected hearing loss and tinnitus or aggravation of tinnitus caused by the service-connected hearing loss. As such, service connection for tinnitus on a secondary basis to include as based on aggravation is also denied. 38 C.F.R. § 3.310; Allen, supra. The Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Entitlement to service connection for tinnitus, to include as secondary to hearing loss is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs