Citation Nr: 1317846 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-20 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from November 1955 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service connection for bilateral hearing loss was previously before the Board. In a March 2013 rating decision, the RO granted service connection for bilateral hearing loss. Therefore the benefit sought has been granted and that issue is no longer before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from September 2009 to January 2013 that are pertinent to the present appeal. In the March 2013 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from May 2009 to January 2013 were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. In February 2011 and May 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. In May 2013, the Veteran's representative submitted a medical treatise in support of his claim, accompanied by a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). Please note 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 reflects that the Veteran does not have tinnitus due to any incident of his active duty service. CONCLUSION OF LAW The Veteran's tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in December 2007. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), service personnel records, reports of post-service medical treatment, and the report of a VA examination conducted in June 2012. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). This case was remanded in February 2011 so that additional VA treatment records could be obtained. It was remanded again in May 2012 so that additional private medical records could be obtained and the Veteran could be afforded a VA examination. All VA treatment records have been obtained. The RO obtained the Veteran's private medical records with the exception of those from Dr. G. P.; a December 2013 records request was returned to the RO as undeliverable. In January 2013 the RO notified the Veteran that there had been two attempts to secure records from Dr. G. P. In February 2013, the RO contacted the Veteran via telephone and informed him that their letters to Dr. G. P. were returned and asked him if he had another address to provide. The Veteran responded that he did not have another address and was not certain that Dr. G. P. was alive. Instead, he asked to submit a release form for a different provider. He did so and those records were obtained. Thus, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Entitlement to Service Connection for Tinnitus 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). 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 by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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. 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). The Veteran has been diagnosed with tinnitus, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. The Veteran reported that he was exposed to noise while serving aboard the USS Shenandoah. He is competent to report that he was exposed to noise. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that his statement was credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253. Regarding tinnitus, Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss and tinnitus. In that letter, the Director of the VA Compensation Service indicated that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. It was noted that delayed-onset tinnitus must also be considered. In June 2012, the Veteran underwent a VA examination. He reported that the onset of his tinnitus was 10 to 15 years prior to the examination. The examiner diagnosed the Veteran with tinnitus and concluded that it was not related to service. The examiner explained that due to the reported onset several decades after service, the tinnitus "may not be due to the acoustic trauma" the Veteran experienced in service. The examiner concluded that bilateral hearing loss can occur due to acoustic trauma unaccompanied by tinnitus. The VA examiner's opinion provides probative evidence against the Veteran's claim. Further, the Veteran stated that his tinnitus first manifested approximately 15 years prior to the June 2012 VA examination, which was approximately 40 years after his separation from active duty. Further, a March 1982 statement of income net worth and employment notes that he worked as an offset printer for 10 years from the mid 1960s to mid 1970s. This type of work environment would have contained large machinery that produced noise. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran's post-service VA and private treatment records do not provide etiology opinions for his tinnitus. In May 2013, the Veteran's representative submitted an article from the Journal of Clinical Neurology titled, "Tinnitus: Characteristics, Causes, Mechanisms, and Treatments." The article stated that the natural course of noise-induced tinnitus could be acute or chronic. Acute tinnitus could last from a few minutes to a few weeks after noise exposure. In some cases, however, tinnitus has a "gradual onset and several years can pass before an intermittent, low-intensity tinnitus becomes bothersome." Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The exception to this competency rule is when the medical treatise information, where "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 513 (1998). The article does not address the pertinent facts in the Veteran's individual case, and was not referenced in any supporting medical evidence of record. Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The article does not meet the standard set forth in Wallin because it does not delve into an association between the Veteran's service and his currently demonstrated tinnitus. The article is less probative than the opinion of the June 2012 VA examiner because it does not apply the specific facts to this specific case. Sacks, 11 Vet. App. at 317. Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs