Citation Nr: 1309958 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-44 043 ) 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 hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In its March 2010 rating decision, the RO also denied service connection for hearing loss of the left ear, and this denial was also appealed by the Veteran. However, in a subsequent September 2010 rating decision, the RO granted the Veteran service connection for hearing loss of the left ear. As the Veteran had already been awarded service connection for hearing loss of the right ear, his award was modified to reflect service connection for bilateral hearing loss. Because the appellant was awarded service connection for hearing loss, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. Symptoms of tinnitus were not chronic in service. 3. Symptoms of tinnitus have not been continuous since separation from service. 4. The Veteran has a current diagnosis of tinnitus. 5. The Veteran's current tinnitus is not related to exposure to loud noise in service. 6. The Veteran has a current diagnosis of bilateral sensorineural hearing loss, for which he has been awarded service connection. 7. The Veteran's tinnitus is not due to or aggravated by his service-connected bilateral sensorineural hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify under the VCAA. In a January 2010 letter, the Veteran was notified of the general information and evidence needed to substantiate and complete a service connection claim. Additionally, this letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board acknowledges that the January 2010 letter listed only the issue of service connection for bilateral hearing loss, and did not specifically include the issue of service connection for tinnitus. Nevertheless, the January 2010 letter contained the general provisions for the award of service connection for a claimed disorder, and the Veteran has demonstrated actual notice of the pertinent requirements. Specifically, in his April 2010 notice of disagreement and a subsequent July 2010 written statement, the Veteran addressed all pertinent elements of a claim for service connection by contending tinnitus had first manifested in service, was currently diagnosed, and was etiologically related to service. Thus, the Board concludes that no further notice duties remain unfulfilled. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the service treatment records, as well as VA medical treatment records. The Veteran was also afforded a VA medical examination in March 2010, with an August 2010 addendum. The Board notes that the VA medical evidence contains sufficiently specific clinical findings, informed discussion of the pertinent history and clinical features of the disabilities on appeal, and pertinent medical opinions regarding the origins and any possible aggravation of tinnitus; thus, the medical evidence is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Thus, adjudication at this time is warranted. Service Connection for Tinnitus The Veteran seeks service connection for tinnitus. He asserts he has tinnitus as a result of his noise exposure during service, to include serving as a member of the rifle team, and work in a machine shop during service. He asserts that, on these occasions, he was exposed to acoustic trauma on a regular basis. 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, organic diseases of the nervous system are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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). Sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). M21-1MR III.iv.4.B.12.a. In the present case, the Veteran has been diagnosed with, and awarded service connection for, bilateral sensorineural hearing loss. In light of the diagnosis of sensorineural hearing loss that is service connected, the Board will consider service connection for tinnitus as a chronic disorder. Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. As the Veteran has been awarded service connection for bilateral sensorineural hearing loss, the Board will also consider secondary service connection for tinnitus as caused or aggravated by his hearing loss. Upon review of the evidence, the Board concludes that the Veteran was exposed to loud noises during service. He was granted service connection for bilateral sensorineural hearing loss based in part on that finding. While the Veteran was exposed to loud noises (acoustic trauma) in service, and has reported the onset of tinnitus during service, the weight of the evidence demonstrates that he did not experience chronic symptoms of tinnitus during service. Considering first the Veteran's service treatment records, these are negative for any complaints, diagnosis of, or treatment for tinnitus. On the January 1971 service separation examination, hearing was noted to be worsening, and a hearing defect was diagnosed; however, tinnitus was neither reported by the Veteran nor diagnosed by a medical examiner at that time. In his April 2010 notice of disagreement, the Veteran stated that he experienced tinnitus during service "once or twice" following training at the firing range, but "it went away and did not [persist]" and thus was not reported by him at examination for service separation. He also denied ever seeking medical treatment for tinnitus during service. In light of this evidence, the Board concludes that even if tinnitus symptomatology arose at any point during service, it was not present at service separation, by the Veteran's own admission. The Board also finds, upon review of the record, that the weight of the evidence demonstrates that the Veteran did not have continuous symptoms of tinnitus since service. In addition to an absence of any documentation of complaints, diagnosis, or treatment for tinnitus from service separation in 1971 until 2009, the Board finds probative the fact that, when the Veteran filed a claim for service connection for bilateral hearing loss in December 2009, he did not mention or claim tinnitus at that time. The Veteran's history at the VA examination also did not mention onset of tinnitus during service or even soon after service. On VA examination in March 2010, the Veteran reported intermittent tinnitus bilaterally. He reported that he was unsure of how long he had experienced his tinnitus, but stated it had become more noticeable over the past several years. He reported the following service he worked in a machine shop, wherein he used hearing protection, and participated in some recreational hunting, for which he used ear plugs. After reviewing the claims file, the examiner opined that the Veteran's tinnitus was less likely than not related to service, as it was not noted within the service treatment records and the Veteran could not remember when it first began. In an August 2010 addendum to the examination report, this same VA audiologist stated that, although tinnitus and hearing loss are commonly present together, they can occur separately and have varying causes. The VA audiologist also reasoned that hearing loss also did not cause tinnitus. Regarding the Veteran's tinnitus, the examiner reasoned that because tinnitus was not noted within the service treatment records and had its onset as a current disorder many years after service, it was "too long removed from military service to be related." The examiner also opined that the Veteran's tinnitus was not secondary to the service-connected bilateral sensorineural hearing loss. Based on this evidence, the Board finds that the Veteran's tinnitus did not manifest to a compensable degree within a year of service separation. By the Veteran's own admission in his notice of disagreement, the tinnitus he initially experienced during service went away and was not present at service separation. The Veteran is competent to report such observable symptomatology as tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Additionally, the Board finds his account to be credible. Nevertheless, the Veteran has stated his in-service tinnitus was not present at the time he left active duty service. Regarding continuity of symptomatology, the Board notes that the Veteran did not report tinnitus for many years following service separation. The Veteran has stated he was unsure of how long he had experienced his current tinnitus, but stated it had become more noticeable over the past several years. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, because of this delay in onset of the Veteran's current tinnitus, a VA examiner found it less likely than not that the Veteran's tinnitus was related to service. The examiner also concluded it was less likely than not that the Veteran's tinnitus was due to or aggravated by the service-connected bilateral hearing loss. Taken together, this evidence suggests both that the Veteran's current tinnitus has not been ongoing since service separation, did not manifest within a year of service separation, and is not etiologically related to any in-service disease or injury. The Veteran himself asserts that his tinnitus is related to his noise exposure during service. As noted above, he is competent to report such observable symptomatology as a ringing in his ears. See Jandreau, 492 F.3d at 1372; see also Charles, 370 Vet. App. at 374. By his own admission, however, his tinnitus experienced in service was not present at service separation, and he only began to notice his current tinnitus in the last several years, many years after service separation. Additionally, on the question of nexus to service in the absence of continuous symptoms of tinnitus since service, the Veteran is not competent to state that his current tinnitus is due to in-service noise exposure, as such an etiological opinion involves medical knowledge or expertise which the Veteran, as a layperson, does not have. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Such opinion of etiology would require knowledge of the complexities of the nervous system, including the question of whether unseen nerves were damaged, the various causes of unobservable nerve injury, and would involve objective neurological testing that the Veteran is not competent to perform. Upon presentation of the claim to a competent medical expert in this case, a VA audiologist, the expert determined the Veteran's current tinnitus was not incurred during service and was not related to any incident therein. Competent evidence indicating an etiological nexus with any incident of service has not been presented or shown by the record. For the reasons and bases discussed above, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for tinnitus, including as a presumptive disease, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus, to include as secondary to service-connected hearing loss, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs