Citation Nr: 1323798 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-05 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified before a Decision Review Officer (DRO) at the RO in Hartford, Connecticut in April 2008. This transcript has been associated with the file. In an August 2011 decision the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2012 the Court endorsed a Joint Motion for Remand (JMR) vacating the Board's decision and remanding the matter for further proceedings. The Court found that the Board did not offer adequate reasons and bases to determine if the Veteran was credible to report he was exposed to loud noises in service. The case was again before the Board in March 2013, and remanded to allow the Agency of Original Jurisdiction (AOJ) to assist the Veteran in the development of his appeal, to include obtaining outstanding treatment records and scheduling the Veteran for a VA examination. The Veteran was notified in March 2013 that he could provide the names of private treatment providers and the VA would obtain these records, but the Veteran did not report any additional treatment outside the VA. He was afforded a medical examination in April 2013. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT Tinnitus is not shown to be due to a disease or injury in-service or to any incident of military service. CONCLUSION OF LAW The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met by a letter sent to the Veteran in March 2007. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained records from the Social Security Administration (SSA) and associated them with the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination most recently in April 2013 for his tinnitus. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached: the examination is factually informed, medically competent and responsive to the Board's inquiry. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed and no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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). 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. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). 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 preponderance of the evidence is against the claim and the appeal will be denied. The Board has reviewed the Veteran's service treatment records and observes that he was given an examination at entrance to service in October 1968. He reported no ear trouble and on examination no tinnitus was diagnosed. Although the Veteran was seen numerous times in service with health complaints, there is no evidence that he complained of, or was diagnosed with tinnitus. In March 1969 the Veteran was seen with complaints of vomiting and an upset stomach. In February 1971 the Veteran reported right foot pain. Also in February 1971 the Veteran complained of a sore throat and cold symptoms. In July 1971 the Veteran again had complaints of a sore throat. In March 1972 the Veteran was evaluated following a vehicle accident. In July 1972 the Veteran was hit in the left ear with a softball. He reported dizziness and tenderness of the left ear. On x-ray his skull was normal. At his separation examination in September 1972 the Veteran again denied ear trouble and tinnitus was not diagnosed. The Veteran's failure to report tinnitus at any time during active duty, and his denial of ear problems at separation from service in September 1972, weighs against his claim that this disorder began in service. The Veteran filed a claim of service connection in October 1994 for a back injury, bilateral hand and elbow injuries, cancer, and spleen removal. He did not report having tinnitus. The Veteran did not file his current claim for tinnitus until September 2006, 33 years after separation from service. This evidence weighs against his claim that he has had tinnitus since separation from service. The law also provides that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. In a January 1995 VA examination the Veteran reported health problems including lymphoma, carpal tunnel syndrome bilaterally, chronic back pain, and bilateral elbow disorders. He did not report tinnitus and the examiner found that his ears were normal. Records from the SSA indicate that due to the Veteran's back and fascia disorders, he could not maintain employment beginning December 1995. In a July 2006 VA treatment record the Veteran reported high pitched tinnitus in the left ear only. He reported noise exposure from working on the flight line in service. He denied occupational or recreational noise exposure. In May 2008 the Veteran reported ringing in his left ear only. In a November 2008 VA treatment record the Veteran reported chronic right ear intermittent tinnitus. Significantly in light of his prior denials of ear trouble, the Veteran then reported in service noise exposure and occupational noise exposure working 13 years in a mill. At his April 2009 VA examination the Veteran reported intermittent tinnitus which occurred once a day for the past 5 years. He reported noise exposure in service while working on the flight line without hearing aids and occupational noise exposure to include mill work post service. In a July 2009 VA treatment record the Veteran reported tinnitus in both ears. In a December 2010 VA treatment record the Veteran reported intermittent tinnitus that was not bothersome. At his April 2013 VA examination the Veteran alleged that his tinnitus began in service due to working on the flight line. The examiner noted that the Veteran's hearing was within normal limits on entrance to service and there were no significant auditory shifts throughout, as shown by his separation examination audiology results. The examiner noted the Veteran's MOS in the Army working as a Security Policeman and observed there was a high probability of noise exposure. However, he again reiterated that the Veteran had no significant shifts in his auditory thresholds during service. He opined it was less likely than not that tinnitus was related to service. The examiner observed that there were other factors that may have caused the Veteran's tinnitus, which include a history of chemotherapy, recurrent ear infections, and occupational noise exposure while working making toilet bowls and sinks. He related these factors to tinnitus as some chemotherapy agents have been known to be ototoxic, meaning they affect the inner ear and may cause tinnitus. As applied to the Veteran's medical history, the examiner observed that chronic ear infections with draining have also been linked to tinnitus, and the post service employment also would have exposed the Veteran to loud noises. In addition to the evidence that the Veteran filed a claim for service connection in 1994 and failed to reference tinnitus, the evidence includes statements and testimony from the Veteran asserting that his tinnitus began in service. These statements are competent, but the Board must then determine their credibility. At the Veteran's April 2008 DRO hearing he testified that he was exposed to loud noises in service to include rocket and mortar attacks. He also testified that he worked on the flight line as a guard and was exposed to loud noises as the planes took off and landed. He testified he had no ear protection during service. He testified that his ears have been ringing since service and continued on for years. The Veteran has testified that he was exposed to loud noises in service including rocket and mortar attacks and general noise on the flight line. The Board finds that the Veteran is competent to report that he was exposed to loud noises in service. The Board also finds that the Veteran is credible in reporting he was exposed to loud noises in service. The Veteran's MOS in the Air Force has been identified as an occupation where there was a moderate probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). The Veteran has also reported that he has experienced tinnitus since service. The reported history of tinnitus since active service, while competent, is not credible. The Veteran filed a claim for compensation in October 1994 and did not report tinnitus, although later the Veteran complained that his symptoms had existed since service. The Veteran also did not report tinnitus on his January 1995 VA examination, nor was it diagnosed. The Board cannot determine that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. However, the Veteran's service treatment records and October 1994 claim weigh against the Veteran's contentions that his tinnitus is related to, and has been present since service. The Veteran has been inconsistent in his reports of tinnitus and when it began. As discussed, the Veteran did not claim this disorder on his October 1994 claim for benefits. The Veteran also did not report tinnitus at a January 1995 VA examination. In July 2006 he reported tinnitus in the left ear only and he denied any occupational noise exposure. In November 2008 he reported tinnitus in his right ear only and reported occupational noise exposure from working in a mill for 13 years. At his April 2009 VA examination he reported that his tinnitus began 5 years earlier and occurred once a day. In December 2010 the Veteran reported tinnitus that was intermittent and not bothersome. At his April 2013 VA examination the Veteran reported that his tinnitus began in service. The inconsistencies weigh against the Veteran's contention that his tinnitus is related to service. Accordingly, the Board finds the Veteran's statements lack credibility and are assigned little probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The weight of the competent evidence does not attribute tinnitus to active duty. The Board has also considered the April 2013 VA examiner's opinion that the Veteran's tinnitus is less likely than not related to service. The examiner reviewed the claims file, examined the Veteran, and offered an opinion and rationale that his tinnitus was not related to service. The examiner compared auditory thresholds from entrance to service against those at separation from service and found no significant shifts. The examiner also discussed that the Veteran had other possible factors which may have caused tinnitus. These included chemotherapy, recurrent ear infections with drainage, and occupational noise exposure for multiple years. Accordingly, the Board assigns the examiner's opinion high probative value and weight. The Board has considered the Veteran's statements and his April 2008 DRO hearing testimony that his tinnitus began in service as a result of exposure to loud noises. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of determining the etiology of tinnitus, this falls outside the realm of common knowledge of a lay person. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the Veteran has offered only conclusory statements regarding the relationship between his in service incident and current tinnitus. A VA examiner has reviewed service and post-service treatment records, considered reported history, examined the Veteran, and determined that tinnitus is not related to service. Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs