Citation Nr: 1314844 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-36 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2011, the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) at the RO. A transcript of that hearing is included in the claims file. In November 2012, the Veteran's representative submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Regarding the Veteran's claim for an acquired psychiatric disorder, while the Veteran has claimed entitlement to service connection for PTSD, there are other psychiatric diagnoses of record, such as major depressive disorder. Given the Veteran's description of his claim for PTSD and the information of record, the Board finds that the claim encompasses any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a Veteran's claim for service connection for PTSD may also include any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Therefore, the Board has characterized that portion of the appeal involving service connection for PTSD as encompassing any acquired psychiatric disorder, to include PTSD, as reflected on the title page. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Tinnitus neither had its onset in service nor is related to the Veteran's period of service in any other way. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a January 2009 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the January 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. Also, the Veteran was provided a VA examination in May 2009. The examination and associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the May 2011 Board personal hearing, the AVLJ fully explained the issue herein decided. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States. The AVLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed tinnitus, specifically regarding the date of its onset, and the types and levels of noise exposure the Veteran had in service and after service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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. See generally 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, service treatment records reflect no reports of or findings pertinent to tinnitus. At the time of his May 1967 examination for separation from service, the Veteran reported that he did not have and had never had hearing loss or ear trouble, and no tinnitus was noted. The Veteran's service personnel records reflect that his military occupational specialty (MOS) was as a site development specialist, and that he served 11 months and 18 days of foreign and/or sea duty during the Vietnam Era, primarily at U-Tapao Air Force Base in Thailand. The earliest evidence of tinnitus in the medical record is a VA treatment record dated in January 2009, subsequent to the Veteran's December 2008 claim for service connection. At the time of treatment in January 2009, the Veteran reported reduced hearing in both ears of gradual onset, and tinnitus a few minutes several times a day, most days in both ears. The report of a May 2009 VA audiological examination reflects that the Veteran reported being exposed to loud noise while serving as a surveyor and draftsman in the military, and that he experienced noise exposure from working on a flight line for three months and service in Vietnam for one month where he experienced noise from artillery fire. He also reported occupational noise exposure as an engineer at a fertilizer plant for 30 years, although he reported that he was typically in an office and spent about one hour each day on the manufacturing floor with use of hearing protection. He reported recreational noise exposure including hunting and limited use of a motorcycle. He also reported intermittent tinnitus in both ears since service in the military. The VA examiner diagnosed intermittent tinnitus in both ears, and opined that, given that the Veteran's hearing was within normal limits in both ears on his separation audiogram, and given his 30-year history of occupational noise exposure, it was less likely than not that the Veteran's current tinnitus was due to his military noise exposure. In his September 2009 notice of disagreement, the Veteran stated that he informed the VA examiner that he remembered his ears ringing when he was on the flight line and after, and that he believed that this showed that he had tinnitus on active duty. He further stated that he was exposed to jet engine and artillery fire noise without hearing protection, and he believed that this affected his hearing more than occupational noise after service where he was required to wear hearing protection. During his May 2011 Board hearing, the Veteran testified that he had had tinnitus intermittently since military service that came and went. He testified that as a surveyor in service he went to the flight lines and did typographical things, laid out buildings, and worked in close proximity to aircraft without any kind of hearing protection. He testified that he was exposed to such noise about 30 days a year, but when in Thailand he was exposed about every day, as he was on the flight lines almost every day. He stated that the ringing in his ears started in 1964 when along the flight lines, with constant on and off ringing. He also testified that he had worked in a noisy factory for 27 years after service, but that he was required to wear hearing protection at all times at his job, and that he used to hunt a little. He further testified that he believed that his recreational and civilian noise exposure did not compare to the noise he experienced in service, and that his tinnitus began during in service and had continued to the present. The Veteran testified that he had hearing loss, and that, in his opinion, hearing loss was initiated at the same time as the ringing in his ears started. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be denied. The evidence reflects that the Veteran has a current tinnitus disability, and the Board acknowledges the Veteran's reports of noise exposure in service, including jet engine and artillery fire noise from working on flight lines and serving in Thailand. However, even assuming the credibility of the Veteran's statements regarding his in-service noise exposure, the weight of the probative evidence does not reflect that tinnitus either had its onset in service or is related to the Veteran's period of service in any other way. The only competent and probative medical opinion on the question of whether the Veteran's tinnitus is related to his service is that of the August 2009 VA audiology examiner, who opined that it was less likely than not that the Veteran's current tinnitus was due to his military noise exposure, based on the fact that the Veteran's hearing was within normal limits at the time of his separation from service, and given his 30-year history of occupational noise exposure. The Board finds that this opinion is persuasive. The VA examiner had appropriate medical expertise, reviewed the record, fully examined the Veteran, and considered the Veteran's own given history and reports of in-service noise exposure and the onset of his tinnitus. Moreover, the examiner considered the Veteran's reports that, during his 30 years of working as an engineer at a fertilizer plant, he was typically in an office but spent about one hour each day on the manufacturing floor with use of hearing protection; the examiner nonetheless determined that 30 years of such occupational noise exposure was a more likely etiology than noise exposure during the Veteran's period of service more than 40 years prior. The Board finds that the examiner's rationale is persuasive, and affords the opinion significant probative weight. Furthermore, significantly, there is no competent and probative medical opinion of record contradicting that of the August 2009 VA examiner or otherwise supporting the Veteran's claim, and neither the Veteran nor his representative has identified any such evidence. The Board recognizes that the Veteran might disagree with the conclusion of the May 2009 VA examiner, and might believe that his tinnitus is due to service and not post-service noise exposure, and that he has asserted that he was exposed to much more noise in service than after. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. Also, the Board acknowledges the Veteran's statements and testimony that intermittent tinnitus began during service while working along the flight lines and has persisted to the present. The Veteran is competent to report matters within his own personal knowledge such as the existence of ringing in his ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Ultimately, however, the Board finds that the Veteran's assertions regarding the onset and continuation of his tinnitus from the time of service are not credible. Initially, in addition to the lack of any indication of tinnitus in the service treatment records, the earliest medical record indicating any tinnitus is the January 2009 VA treatment record, dated after the Veteran's December 2008 claim for service connection. The absence of any medical evidence or other indication of tinnitus until over 40 years after the Veteran's separation from service is a factor the Board has considered. Also, the Veteran's report in January 2009 that he had tinnitus a few minutes several times a day was made in the context of complaints of reduced hearing in both ears "of gradual onset." There was no indication that tinnitus had persisted prior to the Veteran's reduced hearing problems "of gradual onset," or any indication that such tinnitus had existed for over 40 years, since the Veteran's period of service. In this regard, while the Veteran reported reduced hearing problems "of gradual onset" in January 2009, he testified during the May 2011 hearing that he had hearing loss, and that, in his opinion, hearing loss was initiated at the same time as the ringing in his ears started. Moreover, the opinion of the May 2009 VA examiner that the Veteran's tinnitus was unlikely related to service given his 30-year history of occupational noise exposure, even after considering the Veteran's reports of intermittent tinnitus in both ears since service and reports of in-service noise exposure, weighs against the Veteran's assertions of continuous tinnitus since service. Thus, the Board finds that the weight of the evidence is against the Veteran's claim for service connection. Accordingly, the Board finds that the claim for service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for tinnitus is denied. REMAND The record reflects diagnoses of and treatment for psychiatric disorders, including PTSD and major depressive disorder, beginning in January 2009. In an October 2009 written statement identifying in-service stressful events that the Veteran believed had resulted in PTSD, the Veteran reported that in March or April 1966, while surveying flight line infield, rocket fire started going by him and a sergeant and they dove under a truck. He stated that none of the rocket hit the truck, but that some when out short of them and some when skipping by them, that some officers were killed, and that he was told that several Thai persons in a village had been killed. In October 2009, the RO attempted to verify this claimed stressor with the U.S. Army and the Joint Service Records Research Center (JSRRC). In November 2009, JSRRC responded that it had researched Commander's Reports for the Veteran's unit, but that there was no report of an enemy rocket attack at U-Tapao Air Force Base, where the Veteran was stationed, where U.S. Air Force personnel and Thai villagers were killed during the July 1966 to April 1967 time frame. In November 2009, the RO made a Formal Finding of lack of information required to corroborate the Veteran's claimed stressor, stating that although the Veteran reported that in March or April 1966 he experienced a rocket attack at U-Tapao, Thailand, JSRRC was unable to verify the attack. In his March 2010 notice of disagreement, the Veteran stated that U-Tapao was not the correct area for the rocket attack, but rather it occurred at Udorn Air Force Base, Thailand. In a July 2010 statement, the Veteran asserted that the claimed incident involving rockets occurred at Udorn, and was not an attack, but rather involved explosions caused by incorrectly handled U.S. rockets. In August 2010, the RO again made a Formal Finding of lack of information required to corroborate the Veteran's claimed stressor, stating that a request to JSRRC could not be done because the Veteran did not provide an approximate timeframe for the explosion at Udorn, Thailand. During his May 2011 Board hearing, the Veteran testified that while serving in Thailand, he experienced an incident where he, a sergeant, and a Thai person were in the middle of a flight line doing topographical mapping, when he heard a noise that sounded like rockets, turned around, saw rockets coming at them, and dove underneath a truck. He testified that he thought that they were under fire, but was told it was a rocket that had been fired accidentally, and was also told that it had hit the officers quarters and hit a village. The Veteran stated that this took place in June 1967 at Udorn Air Force Base. In light of the information provided by the Veteran, the RO should again attempt to verify the Veteran's claimed stressor of experiencing an accidental rocket fire, which may have killed officers and Thai villagers, at Udorn Air Force Base during June of 1967, to include through any Wing History and Safety Reports for the relevant period, through JSRRC and any other pertinent source. Also, service treatment records reflect that at the time of his examination for separation from service in May 1967, the Veteran reported excessive worry and depression secondary to personal problems, at present. In June 1967, the Veteran was seen for wanting something to sleep. At that time, he stated that since receiving a letter from his wife he could not sleep, and that he worried about money. The impression at the time was anxiety reaction. Under these circumstances, the Veteran should be provided an examination and opinion addressing whether he has an acquired psychiatric disability, to include PTSD, and, if so, whether such disability is related to his period of service. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the Veteran's claimed stressor of experiencing an accidental rocket fire, which may have killed officers and Thai villagers, at Udorn Air Force Base during June of 1967, to include through any Wing History and Safety Reports for the relevant period, through JSRRC and any other pertinent source. If the Veteran clarifies any of this information, the RO should change such information accordingly prior to submitting it to JSRRC. Any records produced by such efforts should be associated with the claims folder. Any unsuccessful attempts to obtain such records should also be associated with the claims folder. 2. Schedule the Veteran for a VA examination with an appropriate examiner to obtain an opinion as to the etiology of any psychiatric disability, to include PTSD. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether PTSD or any other psychiatric disability is at least as likely as not (i.e. a 50 percent probability or more) related to any in-service stressful event, or otherwise related to service. In making this determination, the examiner should specifically consider the May 1967 notation of excessive worry and depression secondary to present personal problems, and the June 1967 notation of anxiety reaction. A complete rationale for all opinions must be provided. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs