Citation Nr: 1318737 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-46 574 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1964. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2008 rating decision in which the RO, inter alia, denied service connection for tinnitus and PTSD. In December 2008, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In his November 2009 substantive appeal, the Veteran expressed his desire for a hearing before a Veterans Law Judge. Thereafter, in correspondence received in August 2011, he withdrew his hearing request. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file that has been reviewed in connection with this appeal. The Board's decision on the claim for service connection for tinnitus is set forth below. The claim for service connection for PTSD is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's assertions of in-service noise exposure are consistent with the circumstances of his service, and he has competently asserted experiencing current tinnitus. 3. There is no competent, credible evidence of tinnitus during, or continuing since, service; and the most persuasive evidence on the question of whether the Veteran's tinnitus is related to service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an March 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The October 2008 RO rating decision reflects the initial adjudication of the claim after issuance of the March 2008 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes service treatment records (STRs), VA and private treatment records, and an October 2010 VA audiological examination. Also of record and considered in connection with this appeal are various statements provided by the Veteran, as well as by his spouse, former service comrades, and his representative, on his behalf. The Board finds that no further RO action on the claim herein decided, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends he is entitled to service connection for tinnitus due to noise exposure while in service. His DD Form 214 reflects that he was a light weapons infantryman, earning "expert" and "sharpshooter" distinctions. Service connection may be granted for 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not among the diseases listed in section 3.309(a). At the outset, it is noted that all of the evidence in the Veteran's claims file (paper and electronic) has been reviewed. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that every item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran's military occupational specialty as an infantryman likely involved significant in-service noise exposure; his assertions of in-service noise exposure are thus deemed credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(b) (West 2002). Moreover, tinnitus, or ringing in the ears is the type of disability that the Veteran is competent to assert on the basis of lay assertions, alone (see, e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002)), and here, the Board finds no reason to question the veracity of the Veteran's assertions in this regard. On the basis of the above, the Board finds that the in-service injury or disease, and current disability elements of the claim are reasonably met. Notwithstanding the above, however, the claim must be denied on the basis of medical nexus, as there is no competent, credible and probative to support a finding that the Veteran's tinnitus had its onset in service, or is medically-related to in-service noise exposure. Service treatment records reflect that no complaints of tinnitus were noted on the Veteran's December 1961 entrance examination or October 1964 separation examination. Medical history forms, completed by the Veteran in conjunction with his entrance and separation examinations, reflect that he denied a history of ear trouble and running ears. The remaining service treatment records are silent for any complaints relating to tinnitus or the Veteran's ears. Post-service, the Veteran's first documented complaint of tinnitus occurred in February 2008, when he filed his claim. Private treatment records, dated from February 1999 to October 2003, and VA treatment records dated from December 2004 through January 2009 chronicle multiple visits to healthcare providers, yet are devoid of any complaints of tinnitus. Notably, the Veteran was treated on several occasions by a VA ear, nose and throat doctor but did not once indicate that he was suffering from tinnitus. The Veteran's first report of tinnitus to a healthcare professional is documented in the report of the October 2010 VA audiological evaluation ordered in connection with this claim. The Veteran told the examiner that he has experienced a ringing and whistling sound in his ears ever since service, and a worsening, cricket-like sound. The Veteran's reported post-service occupational history included working as a cook for ten years, in a manufacturing plant for 12 years, and as a carpenter all his life. He denied any firearm use, or any other significant noise exposure, after service. After interviewing the Veteran, and considering his assertions and documented medical history (gleaned from a review of his claims file), the audiologist opined that the Veteran's tinnitus was less likely than not due to service. He reasoned that, though the Veteran reported his tinnitus had been "driving him nuts" since service, there were no complaints of tinnitus located in his STRs, nor any abnormalities noted at his separation examination. He further observed that the Veteran had sought medical treatment several times over the years, to include treatment by an ear, nose and throat doctor, yet never reported tinnitus. The Board accords the audiologist's opinion significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary competent evidence or opinion of record to refute the VA examiner's opinion, and neither the Veteran nor representative has identified or even alluded to an existing opinion by a competent professional to support the claim. . The record otherwise presents no basis for a finding of service connection in this case. Consistent with the VA audiologist's report, the first documented evidence of tinnitus was approximately 45 years after the Veteran separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board notes the Veteran's assertions of continuity of symptomatology of tinnitus since service. As mentioned above, tinnitus is the type of disability that the Veteran is competent to establish on the basis of his own assertions (see, e.g., Charles, supra). Thus, although tinnitus is not a chronic disease under 38 C.F.R. § 3.309(a), given the nature of the disability, the Board has still considered whether his assertions of continuity of symptoms of ringing in the ears persuasively support the claim. Again, however, the Board notes that the Veteran did not report tinnitus until the October 2010 VA examination, ordered in connection with his current claim for VA benefits. The Board places far greater probative value on the pertinently negative service department records and post-service medical records than it does on the more recent statements of the Veteran advanced in connection with the current claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). What is or is not documented in such records is considered more reliable, in the Board's view, than the Veteran's unsupported assertions made over 45 years later. See also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). See also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). It is also noteworthy, as alluded to by the VA audiologist, that the Veteran made no reference to having tinnitus when he filed his initial claim for VA benefits in September 1987. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). [Parenthetically, it is also noted that the Board finds further reason to question the Veteran's credibility in the fact that he initially reported his dates of service as December 1961 to December 1964 on his September 1987 claim form, but has since claimed additional service, to include service in Vietnam, pertinent to his PTSD claim, which the RO has been unable to verify], Given all of the above, the Board finds the Veteran's current assertions as to continuity of symptoms of ringing in the ears during and since service to be lacking in credibility and, hence, probative value. The Board further notes that lay statements of record provided, on the Veteran's behalf, by his wife and former service comrades, received in April 2008 and June 2009, each provide competent evidence as to matters within their personal knowledge, such as what they observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). Even if presumed credible, however, here, these lay statements provide no persuasive support for the claim. In her letter, the Veteran's wife generally attests to the difficulties she has witnessed her husband experiencing over 48 years of marriage. Her only specific reference to tinnitus is that the Veteran was experiencing ringing in his ears as early as the 1970's, when he was being treated by "Dr. Jeffrey" for his back and depression (a time frame which post dates service). It appears that the only other point she made that is in any way pertinent to the current claim is that he did not seek compensation through VA (presumably, shortly after his discharge from service) because he thought other veterans were more deserving. Such does not adequately explain, however, why there are no documented complaints for more than 40 years after service, to include in records of VA treatment records beginning in the 1990's. Moreover, none of the buddy statements from the Veteran's former service comrades includes any comments whatsoever relevant to the Veteran's tinnitus. Finally, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's tinnitus and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. Based on the foregoing, the claim for service connection for tinnitus must be denied. In reaching the conclusion to deny the claim, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is denied. REMAND The Board's review of the claims file reveals that additional RO action on the remaining claim for service connection for PTSD is warranted. In a December 2011 letter, the Veteran stated that he had been attending weekly support group meetings for his PTSD over the past year at the John H. Bradley Community Based Outpatient Clinic in Appleton, Wisconsin (located in the Fox Valley area). These records are not in the Veteran's claims file (paper or electronic); the most recent VA treatment records pertaining to the Veteran's mental health are dated from January 30, 2009, from the Fox Valley VA facility. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the John H. Bradley Community Based Outpatient Clinic and affiliated facilities any outstanding records of evaluation and/or treatment of the Veteran's mental health since January 30, 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, while this matter is on remand, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is REMANDED for the following action: 1. Obtain from the John H. Bradley Community Based Outpatient Clinic and affiliated facilities (any outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since January 30, 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for PTSD in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs