Citation Nr: 1320260 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-46 664 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1969 to May 1971, to include combat service in the Republic of Vietnam. The Veteran was also awarded the Combat Infantryman Badge (CIB). This appeal to the Board of Veterans' Appeals (Board) initially arose from an October 2008 rating decision in which the RO, in pertinent part, denied the Veteran's claim for service connection for tinnitus. In June 2010, the Veteran testified at a RO hearing before a Decision Review Officer (DRO). A hearing transcript has been associated with the claims file. A review of the paperless, electronic (Virtual VA) claims processing system reveals VA treatment records dated through January 2013; such records dated through December 2010 were considered by the RO in the April 2011 supplemental statement of the case (SSOC). In February 2013, additional VA treatment records related to the Veteran and dated through January 2013 were added to the paperless, electronic (Virtual VA) claims processing system. The Veteran's representative submitted a waiver of initial RO consideration of this evidence in May 2013. See 38 C.F.R. §§ 20.800, 20.1304 (2012). As a final preliminary matter, the Board notes that the Veteran also filed an appeal as to the October 2008 denials of claims for service connection for posttraumatic stress disorder (PTSD) and a shrapnel wound to the left knee. However, an August 2010 DRO decision granted service connection for a residual scar from a shrapnel wound to the left suprapatellar knee while a January 2011 rating decision granted service connection for PTSD; initial ratings were assigned for both disabilities. As the August 2010 and January 2011 decisions represents a full grant of the benefits sought with respect to these issues, these matters are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service, he has not specifically or credibly asserted continuity of symptoms of ringing in the ears during and since service. 3. Tinnitus was not shown in service or for many years thereafter, and the medical opinions that directly addressed the medical relationship, if any, between current tinnitus and service weigh against the claim. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1154, 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) (2012). 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 a 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 a May 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. This letter provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The October 2008 RO rating decision reflects the initial adjudication of the claim after the issuance of the May 2008 letter. In addition, the May 2008 pre-rating letter provided the Veteran with 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 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 consists of service treatment records as well as VA and private treatment records. A May 2008 response from the Social Security Administration indicates that there were no records related to the Veteran. Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this 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 this 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. 537, 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. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service; tinnitus is not considered to be a chronic disease. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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 apply 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 listed as a chronic disease under 38 C.F.R. § 3.309(a). A June 1969 service entrance examination was negative for any relevant abnormalities and the Veteran denied ear trouble in an accompanying Report of Medical History (RMH). A June 1971 service discharge examination was also negative for any relevant abnormalities and the Veteran reported that he was in good health. The remaining service treatment records were negative for complaints, treatments or diagnoses related to tinnitus. The report of a September 2008 VA examination reflects the Veteran's complaints of rare bilateral ringing in his ears of moderate loudness. This ringing was described as a ringing and buzzing sound that occurred once a month and lasted for minutes each time. In-service noise exposure from artillery, aircraft, tanks and gunfire, without the use of hearing protection, was reported. Post-service occupational noise while working in construction for 20 years and recreational noise exposure from power tools, without the use of hearing protection, were also reported. Following this examination and a review of the Veteran's claims file, the examiner opined that the rare episodes of head noises as described by the Veteran were consistent with normal auditory function and were not consistent with the presence of tinnitus with an etiology of noise exposure. Ina June 2010 hearing, the Veteran testified that he first started to notice ringing in his ears during service and that this ringing was not intermittent; in other words, that it was persistent. In April 2011, ear ringing was noted as a barrier to hearing by a VA treatment provider. In a July 2011 statement, the Veteran's wife attributed his hearing loss to his in-service noise exposure, but did not specifically address tinnitus or ear ringing. The Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). In this regard, the Veteran has reported that he was exposed to noise from artillery, aircraft, tanks and gunfire. The Board notes that his Form DD-214 lists his most significant duty assignment as having been in the light weapons infantry and the CIB indicates combat exposure. Given the circumstances of the Veteran's duties in service, the Board finds that he was likely exposed to some noise in service. Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A.§ 1154. The Board also points out that, as a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, such as his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); The Veteran is also competent to testify about observable symptoms or injury residuals, such as tinnitus (i.e., ringing in his ears). See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, ringing in the ears, or tinnitus, is the type of disability for which he competent to establish on the basis of lay assertions, alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Board finds no reason to question the veracity of the Veteran's assertions that he currently experiences tinnitus. However, the record does not credibly establish continuity of symptoms of tinnitus during and since service, as the Veteran has asserted in connection with the current claim. The Veteran's service discharge examination report reflects no complaints related to tinnitus. With respect to post-service medical records, the first documented evidence of a complaints related to ear ringing was in a September 2008 VA examination. As noted above, there is nothing in the Veteran's service records to indicate tinnitus had its onset during service or shortly after service. Rather, the first documented complaint of such ear ringing was in 2008, approximately 37 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 also notes that the Veteran has not been consistent in his assertions regarding the onset and presence of such tinnitus or ear ringing. He reported being in good health in his June 1971 service discharge examination and no abnormalities were found. During his September 2008 VA examination, he reported "rare" incidents of ear ringing but did not indicate that such symptoms either began during service or that they had occurred continuously since service. Indeed, the Veteran's description of his symptoms as "rare" suggests that they had not been continuous since service. By contrast, more recently, during the June 2010 Board hearing, the Veteran testified that his ear ringing began during service and was not intermittent in June 2010. In light of these contradictory statements, any current assertions as to experiencing either tinnitus or ear ringing during service or continuously since service, advanced in furtherance of the appeal, are deemed not credible. Notably, in the September 2008 VA examination report, the VA examiner declined to find a nexus between the Veteran's tinnitus and service, noting that the Veteran's subjective complaints were not consistent with tinnitus caused by acoustic trauma. As this opinion was based on examination of the Veteran and consideration of his documented medical history and assertions, and is supported by stated rationale, the Board accepts this opinion as probative of the medical etiology question. Furthermore, as for any direct assertions by the Veteran, his wife 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 one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran, his wife nor his representative is shown to be other than a layperson without the appropriate training and expertise, none 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. For all the foregoing reasons, 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. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs