Citation Nr: 1312450 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 12-30 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision in which the above Regional Office (RO) of the Department of Veterans Affairs (VA), in pertinent part, denied service connection for tinnitus. In January 2013, the Board issued a decision denying the Veteran's claim for entitlement to service connection for bilateral hearing loss, and remanding the claim for service connection for tinnitus, to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development. A review of the record shows that a VA DBQ (disability benefits questionnaire) opinion was obtained. Thus, the Board concludes there was substantial compliance with the remand directives of January 2013. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note that 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). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's tinnitus was manifested in service and is also against a finding that his tinnitus is causally related to service, including to excessive noise exposure therein. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty 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. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that-except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim-the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2010 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that, in the July 2010 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. In addition, a VA DBQ opinion was obtained in February 2013, which included a review of the claims folder and an opinion that is supported in the record. Thus, this examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The Board also notes that an earlier VA examination/opinion was conducted in September 2010. However, in the January 2013 remand, the Board found the September 2010 VA examination/opinion was inadequate with regard to the Veteran's claim for service connection for tinnitus, as it was based on an inaccurate rationale. The report will therefore not be considered in this appeal. Thus, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background The Veteran's service treatment records (STRs) show no report or finding of tinnitus. In his initial claim for service connection (VA Form 21-526, Application for Compensation and/or Pension), the Veteran contended that his tinnitus was caused by exposure to excessive noise in service. He reported that his job in service was in aircraft radio maintenance, which involved post- and pre-flight tuning of radio equipment on jet aircrafts, the engines of which were frequently running while he did his service work. He claimed that ear protection was not provided during his term of service, and that the aircraft radios emitted extremely loud, high pitch, sounds during the tuning process. He also claimed that frequently after his shift he would have ringing sounds in his hears for awhile. In a statement dated in June 2010, the Veteran reported that he served in the Air Force during the Korean Conflict from 1951 through 1955, as an aircraft electronics maintenance specialist, and that his job was performed without the benefit of ear protection, as there was little or no concern at the time about the potential for ear damage. He claimed that he had significant hearing loss that had taken place over a number of years, and that his hearing had diminished since his time in service. He went on to describe his in-service exposure to excessive noise in detail. He indicated that in an office visit to his physician in approximately 1970, it was brought to his attention that he did have hearing impairment and tinnitus, and that since then it had become progressively worse. On a VA examination in September 2010, it was noted that the Veteran currently complained of tinnitus that had an onset of "approximately 1970." The examiner noted that the etiology of tinnitus could not be determined on the basis of available information, without resorting to speculation, and that it was up to the RO to determine whether further non-audiological examination was needed to determine the etiology of tinnitus. The examiner then opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma during military service. For rationale, the examiner acknowledged the Veteran's military noise exposure, but noted that the tinnitus onset was 15 years after military noise exposure, and was not correlated to acoustic trauma during service. The examiner concluded with stating that there was "no evidence the [V]eteran suffered hearing loss or tinnitus secondary to acoustic trauma as the current hearing loss is consistent with normal aging." Received from the Veteran's wife in June 2011 was a statement in which she contended that she was engaged to the Veteran during his time in the Air Force and that, during his tour in service, he often commented on ringing in his ears caused by aircraft radios he worked with and the noise from the jet engines. A private audiological evaluation, dated in July 2012, noted the presence of the Veteran's bilateral hearing loss disability and tinnitus. Therein, the private audiologist provided an impression of history of military noise exposures and trouble hearing and that it had been "denied by VA" and "wants outside audio." In a statement dated in January 2013, the Veteran contended that there was an apparent misunderstanding on the part of those who had reviewed his claim at the regional level, who appeared to have interpreted information the Veteran had provided as meaning that his hearing loss and tinnitus were first noticed at the time of his doctor visit in 1970. The Veteran claimed that both hearing loss and tinnitus were first noted while he was still in the service. He reiterated that he was exposed to noise in service as a radio technician, that he was not provided ear protection, and that as a result his hearing and tinnitus problems started in service. He also reported that his tinnitus was now continuous. On a February 2013 VA DBQ report, it was noted that the Veteran reported his tinnitus started during service, but that he could not isolate when. The examiner (who had also conducted the September 2010 VA examination) opined that the Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure. For rationale, the examiner noted that the Veteran had a high risk noise occupation during service, but that he was afforded a comprehensive separation physical, which included an evaluation by an ear, nose, and throat specialist, and that no tinnitus was reported at that time, but that the Veteran did report other medical conditions, including sinusitis. The examiner further noted that there was no noise-induced hearing loss to support the Veteran's claim as his hearing loss was age related. The examiner noted that the Veteran had reported in his original claim in 2010 that during a physical in 1970 it was brought to his attention that he did have hearing impairment and tinnitus and that since then it had become progressively worse. The examiner noted that this contradicted the Veteran's statement that his tinnitus started during service and that his service treatment records were negative for any complaints of tinnitus, although a separation examination was done and other conditions were reported. The examiner indicated that the Veteran was vague when he described when the tinnitus started. The examiner stated that "it had to be during service after being around aircraft noise," however, also noted that the Veteran could not give a specific timeframe of onset. The examiner further stated that tinnitus secondary to noise exposure occurs at the time of onset. The examiner concluded that, considering all the evidence, she could not be 50 percent or more certain that the Veteran's tinnitus resulted from military noise exposure. III. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not listed under 38 C.F.R. § 3.309(a) as a chronic disease. Although 38 C.F.R. § 3.309(a) lists "Other organic diseases of the nervous system" as a chronic disease, and VA has established that sensorineural hearing loss is considered an organic disease of the nervous system, no such interpretation has been made with respect to tinnitus. See M21-1MR III.iv.4.B.12.a. Thus, the Board concludes that tinnitus does not fall under the rubric of 38 C.F.R. § 3.309(a). Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to opine on some medical issues [Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)], as to the specific issue in this case, residuals of a head injury in service falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107. IV. Discussion With regard to current disability, the record reflects that the Veteran has contended in statements submitted to VA that he has had ringing in his ears since service. The Board notes that he is competent to testify as to observable symptoms such as ringing in his ears, and tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Inasmuch as the diagnosis of tinnitus is essentially based on subjective accounts, and because the Veteran has reported that he has such disability, it may be conceded that he has a current disability of tinnitus. STRs show no report or finding of tinnitus; however, VA has essentially conceded that the Veteran was exposed to excessive noise in service. The Board also notes that a lack of evidence showing that the Veteran exhibited tinnitus during service is not fatal to his claim. The critical question is whether he has tinnitus which may be causally related to service. In this regard, the Board notes that a VA DBQ examiner in February 2013 addressed the issue of whether the Veteran's tinnitus is causally related to active service. In February 2013, the VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure. The Board finds that this opinion of the VA examiner to be probative and persuasive on the issue of service connection for tinnitus. The Board also notes that there is no competent medical evidence to the contrary as neither the Veteran nor his representative have produced any medical opinion to contradict the conclusions of this VA examiner. The Board also notes that, while the Veteran submitted a private audiological evaluation, dated in July 2012, which confirmed the presence of his tinnitus, and noted he had history of military noise exposures, such evaluation did not provide an opinion regarding whether his tinnitus may be related to noise exposure service. Thus, the record does not contain competent medical evidence to the contrary of the VA examiner's opinion in 2013. Accordingly, the Board finds that service connection for tinnitus is not warranted. In reaching this determination, the Board has also considered the lay assertions of record, including the Veteran's contentions in support of medical nexus. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997), Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As noted above, although lay persons are competent to provide opinions on some medical issues [Kahana, supra], as to the specific issue in this case-tinnitus falls outside the realm of common knowledge of a lay person. Herein, the Veteran does not possess specialized medical education, training, and experience necessary to render competent medical opinion as to the etiology of his tinnitus. Id. Further, and with regard to the lengthy gap between service and the first notation/diagnosis of tinnitus, the Board acknowledges the Veteran's complaints of tinnitus since service. Significantly, however, the VA DBQ examiner in February 2013examiner considered this evidence and concluded that the Veteran's tinnitus was not related to service. Continuity of symptomatology does not negate the need for competent relevant evidence of an association between a current disability and service. In addition, normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the claim for service connection for tinnitus. The benefit-of-the-doubt rule does not apply, and this issue is denied. 38 U.S.C.A §5107. ORDER Service connection for tinnitus is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs