Citation Nr: 1311653	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO. 08-22 223	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to September 1970 with an unverified four years and two months of prior inactive service with the Air Force Reserves. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The Veteran testified at a Board hearing at the RO before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing has been associated with the Veteran's VA claims folder. In November 2012, the case was remanded for further development. 


FINDING OF FACT

Tinnitus was not shown in service or for many years thereafter and is not shown to be related to service. 


CONCLUSION OF LAW

The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2012).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

An October 2006 letter explained the evidence necessary to substantiate the claim and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

During the July 2012 hearing and pursuant to 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned engaged the Veteran in a colloquy towards explaining the central issues in his claim, and advising him of information not of record that would substantiate his claim.

With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, the reports of VA examinations and the assertions of the Veteran, his representative and his wife, including the July 2012 hearing testimony. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim.

Merits of the Claim

The Veteran contends that his current tinnitus resulted from acoustic trauma during service. Although the Veteran is diagnosed with and is competent to report the presence of tinnitus, the preponderance of the evidence is against a finding that the disorder is related to service. The claim will therefore be denied. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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).

In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

In some cases, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372  (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In certain instances, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

Tinnitus is a subjective phenomenon, and the Veteran is competent to report the presence of the disability.  The Veteran was also diagnosed with tinnitus during VA audiological examinations in October 2006 and January 2013. Accordingly, the first element of a service connection claim, the presence of a current disability, is satisfied. 

The Veteran's service treatment records are negative for any complaint, treatment, or diagnosis of hearing loss or tinnitus.  An audiogram conducted during the Veteran's June 1970 separation examination revealed hearing within normal limits. In his report of medical history completed prior to discharge, the Veteran stated that he was not then experiencing hearing loss or ear problems and that he had not previously experienced such problems.  Thus, tinnitus was not documented during service. 




The Veteran's DD-214 documents that his military occupational specialty (MOS) was a fuel specialist. During the July 2012 hearing, the Veteran testified that he was responsible for refueling aircraft on the flight line - an area where he was surrounded by loud noises.  Thus, based on the Veteran's MOS, the Board finds his contention regarding in-service acoustic trauma consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2002). Accordingly, the second element of a service connection claim, an in-service event, is also satisfied even thought tinnitus was not documented in service.

The remaining question is whether there is a nexus between the Veteran's current tinnitus and his acoustic trauma in service. During the October 2006 VA examination, the Veteran reported that he was unsure when his tinnitus started but estimated it had begun approximately 10 to 15 years prior (i.e. 1991-1996).  In addition to his in-service noise exposure, he also reported post-service exposure to factory noise, construction work, auto and tire repair, chain saws and jack hammers, with some of the exposure occurring without the use of hearing protection. 

The examiner reported her clinical opinion that the Veteran's tinnitus was not a result of noise exposure during service, noting that the Veteran was discharged from service in 1969 but did not begin experiencing tinnitus until sometime around 1991- 1996. 

During the January 2013 VA examination, the Veteran reported that he had had constant bilateral tinnitus since service but the examiner noted, based on her review of the claims file, that the Veteran had indicated an onset of bilateral tinnitus in 1991 at the 2006 VA examination. The examiner found that the Veteran's tinnitus was at least as likely as not a symptom associated with his non-service-connected hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner also found that the current tinnitus was less likely than not caused by or a result of military noise exposure. The examiner based this opinion on the inconsistent subjective reports of the onset of tinnitus and the presence of normal hearing sensitivity at discharge from service with no report of tinnitus shown during service. 

The January 2013 VA examiner's opinion is probative because it is factually informed, medically based and responsive to the Board's inquiry. It informed the Board of the medical expert's judgment on the etiology of the tinnitus and the rationale for her opinion (i.e. that the Veteran's hearing sensitivity was normal; that tinnitus, a symptom known to be associated with hearing loss, was not documented during service and that the Veteran had been inconsistent in his reporting of the onset of the disability). See e.g. Monzingo v. Shinseki, 26 Vet. App. 97 (2012).  
Additionally, this opinion is specifically consistent with and supported by the finding of the earlier October 2006 VA examiner. Accordingly, as there are no medical opinions to the contrary (i.e. opinions tending to indicate that the Veteran's current tinnitus is related to acoustic trauma during military service), the weight of the medical evidence is against the presence of such a relationship.

The Veteran is plainly competent to report that tinnitus began in service and has continued ever since, as he did during the January 2013 VA examination. However, he is not credible in his report of service onset or continuation of the symptom. His pre-discharge examination questionnaire indicates that he reported no problems with his ears and in the October 2006 VA examination, he specifically reported that the tinnitus did not begin until sometime around 1991. 

Given this earlier report, made against his interest in receiving service-connected compensation for tinnitus and given that the Veteran did not report tinnitus or hearing or ear problems more generally during service, including on his medical history report at separation, the Board does not find credible the report of onset of tinnitus in service. Given this lack of credibility, the Veteran's testimony concerning the onset of tinnitus during service and its continuation thereafter is not afforded any probative value. Further, as the Veteran is a layperson who has not demonstrated any specialized knowledge concerning the etiology of his tinnitus (aside from the ability to subjectively observe the phenomenon), any assertion on his part that a later onset tinnitus is related to service is entitled to minimal probative value. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007).

In sum, given that the Veteran's report of the onset of tinnitus during service is not credible; given that tinnitus is not otherwise shown to have begun in service or for many years thereafter; and given that the weight of the medical evidence is against a finding that the current tinnitus is related to service, including acoustic trauma therein, the preponderance of the evidence is against this claim and it must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

 
ORDER

Service connection for tinnitus is denied. 

____________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs