Citation Nr: 1322007 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-35 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970, including service in the Republic of Vietnam from June 1968 to June 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted service connection for PTSD, rated 30 percent disabling, effective August 3, 2009. The Veteran's claims file is now in the jurisdiction of the Little Rock, Arkansas RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video conference hearing in April 2011; a transcript of the hearing is associated with the claims file. The Board notes that the Veteran initiated an appeal of the matter of entitlement to service connection for erectile dysfunction. An August 2010 rating decision granted service connection for erectile dysfunction. Hence, the matter is no longer on appeal and is not before the Board. At the April 2011 video conference hearing, the Veteran testified that he cannot work. The United States Court of Appeals for Veterans Claims (Court) has held that a total disability rating based on individual unemployability (TDIU) is part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, it is unclear whether the Veteran is seeking entitlement to TDIU due to his service-connected disabilities. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki 557 F.3d 1355 (Fed. Cir. 2009) (holding that the Board is obligated to consider arguments or issues raised by the record); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Accordingly, the matter of entitlement to TDIU is referred to the Agency of Original Jurisdiction for clarification by the Veteran, and any further appropriate action deemed necessary in light of his response. The issue of entitlement to an increased rating for 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 was not noted in service; the preponderance of the evidence is against a finding that any current tinnitus is related to the Veteran's service or to any event or injury therein. CONCLUSION OF LAW Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expect to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the VCAA duty to notify was satisfied by way of July, August and September 2009 letters. The letters were sent prior to the initial RO decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. The letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service VA and private treatment records. The Veteran had VA examinations in August 2009 and August 2010. As the August 2010 VA examination was based upon an accurate understanding of the disability at issue, as well as the Veteran's documented medical history, based upon review of his claims file, the Board finds it is adequate for the purposes of deciding the claim on appeal decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. The Veteran has also been afforded a hearing before the Board in which he presented testimony regarding the issues decided herein; he was represented during that hearing by a service representative. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties 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 the present case, while the undersigned VLJ did not discuss the basis for the prior determinations, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been met. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In various statements, the Veteran has alleged that he has tinnitus resulting from noise trauma during service. Specifically, he contends that he has tinnitus resulting from military noise exposure from gunfire, mortars, rockets and helicopters with and without hearing protection while in Vietnam. The Veteran's DD Form 214 shows that his military occupational specialty was helicopter repairman. His decorations and awards include the Aircraft Crewman Badge, Vietnam Service Medal, Vietnam Campaign Medal, Air Medal, and the Army Commendation Medal with "V" Device. The Veteran's service treatment records are silent for complaints, finding, treatment or diagnosis relating to tinnitus. On June 1970 service separation examination, the Veteran's ears were normal on clinical evaluation. On November 1970 VA examination (regarding the Veteran's claim for service connection for hypertension), physical examination of the ears was unremarkable. On December 1972 VA examination (regarding the Veteran's hypertension), physical examination of the ears revealed the external ears and the canals were normal bilaterally. The tympanic membrane revealed a good cone of light. There was no evidence of perforations or discharge. Post-service private treatment records from the Springfield Clinic/Internal Medicine Associates of Springfield, Inc. include a March 1987 report wherein review of systems revealed no tinnitus. A June 1993 report noted the Veteran's complaint of ear ringing for the last two months, and his wife stated his hearing had decreased somewhat. Physical examination of the ears revealed old scarring to the tympanic membranes without active inflammation. A February 1997 report noted that on physical examination the tympanic membranes were clear. Private treatment records from the Banister-Lieblong Clinic include a November 2006 report wherein review of systems revealed ear pain; tinnitus was not noted. A February 2007 report review of systems revealed no complaints/findings regarding the Veteran's ears, to include tinnitus or pain. The instant claim for service connection for tinnitus was filed in June 2009. VA treatment records include a June 2009 report that noted the Veteran's list of active problems included tinnitus. On August 2009 VA audiological evaluation, the Veteran complained of constant, bilateral, ringing tinnitus that began 20 to 30 years ago (i.e., 1979-1989). He reported military noise exposure from gunfire, mortars, rockets and helicopters without hearing protection. His post-military occupational noise exposure was from working in a power plant for one year with hearing protection and working as an electrical lineman for 31 years with hearing protection. His post-military recreational noise exposure was from leaf blowers and chainsaws with hearing protection. The examiner noted that the Veteran's report of the onset of his tinnitus places it after his military service. Therefore, the examiner opined "the Veteran's tinnitus is not related to his military service." On August 2010 VA audiological evaluation, the Veteran reported exposure to loud noise while in service from helicopters, artillery and gunfire with hearing protection sometimes used. He reported post-service occupational noise exposure from machinery with hearing protection. He also reported post-service recreational noise exposure from hunting without hearing protection, and chainsaws, lawn mowers and leaf blowers with hearing protection. The Veteran reported the onset of his tinnitus ten to fifteen years ago (i.e., 1995-2000). No nexus opinion was provided. August 2010 VA Addendum noted that based on the examination and review of the Veteran's claims file, "it is less likely than not the onset of [the] Veteran's tinnitus was due to noise exposure in service." It was explained that the Veteran reported his onset of tinnitus was ten to fifteen years earlier and he was discharged from service over 40 years ago, with a long period of time between discharge from service and the onset of tinnitus. At the April 2011 video conference hearing, the Veteran testified that he currently has constant ringing in his ears. He further testified that he had ringing in his ears during service but that it cleared up and eventually came back. His spouse testified that he told her about the ringing in his ears when they were initially married (i.e., 1973). In this case, the RO has conceded (and the record is consistent with the fact) that the Veteran engaged in combat (and is thereby entitled to consideration of his claim under the relaxed evidentiary standards of 38 U.S.C.A. § 1154(b)). Furthermore, tinnitus is a disability capable of lay observation (by the person who experiences it), and generally not capable of objective verification, and the Board finds no reason to question the veracity of the Veteran's reports that he has ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, what the Board is presented with, in essence, is a combat Veteran's account that the onset of his (undisputedly present) tinnitus is related to his exposure to (conceded) noise trauma in service. The Board finds that a preponderance of the evidence is against a finding that the Veteran's current tinnitus is related to his active service, to include in-service noise trauma. In this case, there is no evidence of complaints, treatment or diagnoses relating to tinnitus during service or within one year after the Veteran's separation from service. Notably, June 1970 service separation examination found the Veteran's ears were normal on clinical evaluation. In addition, November 1970 and December 1972 VA examinations found, essentially, physical examination of the Veteran's ears was unremarkable, and there were no complaints regarding his ears. Consequently, service connection for tinnitus on the basis that such disability became manifest in service and persisted is not warranted. To the extent the Veteran may be seeking to establish a nexus between his current tinnitus and his service by alleging recurrence of symptoms since he was exposed to noise trauma in service, such allegation is inconsistent with, and unsupported by, the factual evidence of record (including that there is no mention of tinnitus in service, and his ears were normal on clinical evaluation on separation), and are not credible. Despite his multiple opportunities to complain of tinnitus in the interim since his separation from service, the earliest postservice documented report of tinnitus is 1993. In addition, on August 2009 VA examination, the Veteran reported the onset of his tinnitus to be 1979 to 1989, and on August 2010 VA examination, he reported the onset of his tinnitus to be 1995 to 2000. Even finding the Veteran's spouse credible (for the limited purpose of this appeal), she has indicated that the earliest period she was informed by the Veteran of his tinnitus was 1973, approximately three years after his separation from service. Furthermore, there are multiple instances in intervening private treatment records when there no abnormal findings/complaints regarding the Veteran's ears. What remains for consideration is whether the tinnitus is somehow otherwise shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter consists of the reports of the August 2009 and August 2010 VA examinations. The Board finds the August 2010 VA examination to be entitled to great probative weight, as the examiner reviewed the Veteran's entire medical history, interviewed the Veteran and obtained his report of the onset of his tinnitus, and explained in full the rationale for the conclusions reached, citing to the lengthy intervening period between any noise exposure during the Veteran's service and his current tinnitus. Because there is no competent evidence to the contrary, the Board finds the VA examiner's opinion to be persuasive. Furthermore, this opinion is supported by the August 2009 VA examination wherein the Veteran also provided a history of the onset of his tinnitus after his separation from active service. The Board has also considered the Veteran's lay statements wherein he alleges his tinnitus is related to (conceded) noise trauma in service, and finds that they do not merit any substantial probative value. The Board acknowledges that lay evidence concerning recurrence of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). However, in this case, the Veteran's assertions as to the onset of his tinnitus are contradictory, and do not offer any explanation for the clinical data that weigh against his claim (to include the lengthy postservice interval before he reported ringing in his ears). Whether tinnitus may (in the absence of credible evidence on recurrence of symptomatology, as here) be related to remote noise trauma is a medical question not capable of resolution by mere lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran, as a lay person, is not competent to report that his tinnitus, first shown after service, is related to service, including noise trauma therein. Id. Hence, his lay assertions are not competent or sufficient to establish service connection. Id. In contrast, the opinions from the medical professionals in this case have not related the Veteran's tinnitus to his active service, to include his conceded noise trauma therein. The Veteran has not submitted any supporting medical evidence for his allegation of a nexus, such as a medical nexus opinion or citation to supporting textual evidence. In this case, the most probative evidence is against a finding that the Veteran's tinnitus is related to service, to include conceded in-service acoustic trauma during active service. Accordingly, the claim for service connection for tinnitus is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is denied. REMAND Regarding the matter of entitlement to an increased rating for PTSD, at the April 2011 video conference hearing, the Veteran testified he has had mental health treatment, including group therapy, since the most recent VA treatment records associated with the claims file. Any outstanding pertinent VA treatment records should either be made accessible electronically or be printed and added to the Veteran's claims file in order for a proper adjudication of his claim. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the record reflects that the most recent VA examination to evaluate the Veteran's PTSD was conducted in October 2009. At the April 2011 hearing, the Veteran and his spouse both testified that his psychiatric symptoms have worsened since the most recent VA examination of record. In light of the state of the record, the Board finds that the claim must be remanded to afford him a VA examination to assess the current severity of his PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Obtain, physically or electronically, any outstanding VA treatment records dated since September 2010. 2. Notify the Veteran that he may submit statements from himself and from others who observed his psychiatric symptoms first hand, which offer descriptions of those symptoms and their impact on his social and occupational abilities. He should also be advised that he may submit evidence relating to the impact of his service-connected disabilities, including in the aggregate, on his ability to obtain and retain substantially gainful employment. 3. After the above has been completed to the extent possible, the RO should schedule the Veteran for a VA psychiatric examination to determine the nature, extent, and severity of his PTSD and the impact of this disability on his occupational functioning and daily activities. The claims file should be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported in detail. In offering opinions, the examiner should acknowledge and discuss the Veteran's report of his PTSD symptoms and their impact on his ability to work and the impact on his social relationships. The examination report should identify all pertinent psychiatric findings and estimate the Global Assessment of Functional (GAF) Scale score. 4. After completion of the development requested above, as well as any additional development deemed necessary has been completed, readjudicate the appeal. If the benefits sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs