Citation Nr: 1316385 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-05 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus, including as secondary to service-connected bipolar disorder REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. The Board notes that, pursuant to his request in his January 2010 substantive appeal, the Veteran requested a hearing before the Board; however, in March 2010, the Veteran withdrew the Board hearing request. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2012). Although the Veteran contended that his tinnitus is caused by the medication for his service-connected bipolar disorder, he already made a separate claim with the RO in July 2008 for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for tinnitus due to fault on the part of VA in administering the medication for bipolar disorder, which was developed for adjudication, but deferred, by the RO. Because the issue of entitlement to compensation benefits under 38 U.S.C.A. § 1151 has already been identified in this case, and is deferred awaiting adjudication, the Board will not infer jurisdiction over the claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151, and, as the claim is already pending claim to the RO, there is no need to remand the claim to the RO. The Board has considered the secondary service connection theory (tinnitus as due to medication for a service-connected disability) in the current issue on appeal, service connection for tinnitus. The issue of entitlement to special monthly compensation under the provisions of 38 U.S.C.A. §§ 1114(l) and 1114(s) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On April 8, 2013, prior to the promulgation of a decision in the appeal of the Veteran's claim of service connection for bilateral hearing loss, the Board received notification from the Veteran's representative that a withdrawal of this appeal is requested. 2. The Veteran did not engage in combat with the enemy during service. 3. The Veteran did not sustain a disease or injury of tinnitus during service. 4. The Veteran's tinnitus is not related to his service, or caused or worsened in severity by his service-connected bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal of the claim of service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for service connection for tinnitus, including as secondary to service-connected bipolar disorder, have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Substantive Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a written Informal Hearing Presentation received by the RO on April 8, 2013, the Veteran's representative indicated that the Veteran wished to withdraw his appeal of his claim of service connection for bilateral hearing loss. Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (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 this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in May 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of private and VA post-service treatment, as well as the Veteran's own statements in support of his claim for tinnitus. The Veteran was examined by VA in connection with his claimed tinnitus in July 2006, October 2009, and November 2009. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The 2009 VA examination reports, in particular, contain all the findings needed to decide the claim for service connection, including history and symptoms, clinical examination findings, and diagnoses. With regard to the claim for service connection for tinnitus, there is a competent medical nexus opinion. The assessment was based on a thorough review of history, current complaints, and various specific clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that any examination is inadequate to decide the current claim, so they are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of 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, all of the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 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(b); 38 C.F.R. § 3.102. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (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. 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). The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); tinnitus is not a chronic disease. Therefore, 38 C.F.R. § 3.303(b) does not apply to the claimed disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. The baseline level of severity of the non-service-connected disease or injury must be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. 38 C.F.R. § 3.310(b). Lay assertions 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. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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). 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, 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"). Service Connection for Tinnitus The Veteran initially filed a claim for service connection for bilateral hearing loss due to noise exposure in February 2006, and amended it in October 2006 to include tinnitus; at that time, he alleged that the use of lithium medication for treatment of his service-connected bipolar disorder should be considered a factor in his claim for service connection for tinnitus. He has not contended that he had onset of tinnitus during service; rather, he contends that tinnitus is due to lithium that he takes for the service-connected bipolar disorder. The record shows that the Veteran has not been diagnosed with an organic disease of the nervous system; thus, the provisions of 38 C.F.R. § 3.303(b) do not apply. See Walker, supra. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease or injury of tinnitus during service, and did not have an onset of symptoms of tinnitus in service. See 38 C.F.R. § 3.303(a). In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. Additionally, the Veteran does not contend that tinnitus started during service. The Veteran is competent to report symptoms of tinnitus that he experiences at any time. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that tinnitus is the type of disorder associated with symptoms capable of lay observation, as it may be diagnosed by its unique and readily identifiable features, so is not "medical in nature"). On the question of onset of tinnitus during service, the Board finds that the Veteran did not have symptoms of tinnitus in service or until many years after service. The Veteran did not make any complaints, nor sought treatment, related to his tinnitus until his claim for service connection in 2006. Consistent with a finding that tinnitus did not have its onset during service, the evidence also shows that the Veteran did not experience symptoms of tinnitus after service. The Veteran did not report a history of in-service complaints or treatment for tinnitus when he sought treatment for his service-connected bipolar disorder in the years since service, beginning in 1973. The Veteran did not report complaints or treatment for tinnitus when he sought audiological treatment for his nonservice-connected bilateral hearing loss in 2005. Significantly, during the course of treatment for bilateral hearing loss in 2005, the Veteran did not make any assertions of tinnitus, or a related in-service injury or current disorder at that time; he also did not assert that he had tinnitus related to his treatment for service-connected bipolar disorder. Additionally, the Veteran has been treated for complaints related to his service-connected bipolar disorder since 1973, and he did not claim his tinnitus was related to service or his service-connected bipolar disorder until he filed his claim for VA compensation benefits in 2006. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright, 2 Vet. App. at 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran sought treatment as early as 1973 for bipolar disorder, and sought treatment as early as at least 2005 for bilateral hearing loss. It is significant that during treatment he did not make any assertions of tinnitus in service or symptoms or complaints of tinnitus since service, particularly in relation to the Veteran's treatment for his service-connected bipolar disorder. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. The weight of the evidence also demonstrates that tinnitus was not caused or aggravated by medication taken for the service-connected bipolar disorder. For reasons explained below, the November 2009 VA ear disease examiner's opinion that the Veteran's current tinnitus is not related to service is of great probative value, and tends to weigh against a finding of secondary service connection by way of aggravation by medication for the service-connected bipolar disorder. The Board acknowledges the October 2009 VA audiological examiner's inability to determine whether the Veteran's tinnitus is related to the Veteran's use of lithium treatment for his service-connected bipolar disorder, but observes that the October 2009 VA examiner nonetheless explains the most likely etiology of the tinnitus as an associated symptom of the non-service-connected bilateral hearing loss. Additionally, the November 2009 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus are likely due to non-service-related factors of age, use of Lasix, and diabetes mellitus. The Veteran's assertions that his tinnitus is related to his service-connected bipolar disorder by means of medication are not competent evidence of such secondary association. The evidence does not reflect that the Veteran has the pharmacological training or experience to opine that, in his case, and eliminating other risk factors for tinnitus, lithium is the cause of his tinnitus. Such relationship between specific pharmacological agents and tinnitus would require a knowledge of all known risk factors for tinnitus. For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for tinnitus, including as secondary to medication for service-connected bipolar disorder. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The appeal of the claim of service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs