Citation Nr: 1323923 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-07 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had National Guard service from November 1965 to January 1969 with a period of active duty for training from February 1967 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran and his spouse testified at a hearing in August 2010 before the undersigned. A copy of the transcript has been associated with the claims file. At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). In April 2012 and January 2013, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have tinnitus due to any incident of his active duty service. CONCLUSION OF LAW The Veteran's tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in September 2008. This letter advised the Veteran of what evidence was required to substantiate his service connection claim, and of his and VA's respective duties for obtaining evidence. The letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination in May 2012 and a supplemental opinion in February 2013. The examination, in conjunction with the supplemental opinion, were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). At a hearing on appeal, 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In this case, the undersigned clearly set forth the issue to be discussed during the August 2010 hearing. The Veteran received a letter in September 2008 that substantially explained what was required to substantiate his service connection claim and there is no indication that he does not understand what is necessary to substantiate his claim. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claim. Further, the Veteran demonstrated actual knowledge of this information because he testified that a truck accident in service caused his tinnitus. Lastly, this case was remanded twice by the Board, thereby allowing time for additional development and providing the Veteran with additional opportunities to identify and submit evidence and argument. This case was remanded in April 2012 and January 2013 so that the Veteran could undergo an adequate VA examination and an etiology opinion could be rendered. As noted above, this was accomplished in May 2012 and February 2013. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Entitlement to Service Connection for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with tinnitus, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. It has been conceded in previous Board decisions that he was exposed to noise during service, satisfying the second element of a service connection claim. Id. The Veteran underwent a VA examination in May 2012. He reported having constant bilateral tinnitus which began 10 years prior to the examination. He believed it was caused by exposure to noise from trucks and shooting weapons. The examiner found that the Veteran's tinnitus was not due to his period of service because he stated that its onset was in approximately 2002, over 30 years after his separation from service. In February 2013, the VA examiner provided a supplemental opinion. She reiterated that the Veteran reported the onset of his tinnitus 10 years prior to the examination. Further, she noted that he testified to the same extent during his hearing. The fact that he reported twice that his tinnitus first manifested in approximately 2002 "...in and of itself [was] taking the [V]eteran's competent and credible statement into account." The examiner stated that she was aware of the Veteran's military occupational specialty and that noise exposure was conceded. However, after considering the fact that the Veteran twice reported that his tinnitus began more than 30 years after separation, she concluded that the tinnitus was not related to service. The VA examination and supplemental opinion provides probative evidence against the Veteran's claim. The Veteran's post-treatment medical records do not address whether there is a nexus between his tinnitus and his period of active service. At his August 2010 hearing, the Veteran testified that he was exposed to noise in service because he drove loud trucks and trained with live ammunition. He stated that he first noticed tinnitus approximately 10 years prior to the hearing. His spouse asserted that the Veteran had problems hearing since his in-service truck accident. She stated that "[h]e had ... excellent hearing. He was just excellent all the way around, until after the accident." His spouse did not assert that the Veteran's tinnitus first manifested shortly after the accident because she only addressed his hearing loss. The Veteran and his spouse's competent and credible testimony does not provide probative evidence in favor of his claim. Regardless, tinnitus is not a chronic condition as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is not applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's STRs are negative for any symptoms or diagnoses of tinnitus. His June 1967 separation examination did not note tinnitus. In his June 1967 report of medical history, the Veteran responded "no" to the question of whether he had ear, nose, or throat trouble. The evidence of record, including the Veteran's own assertions at his hearing and at his VA examination, show that his tinnitus first manifested in approximately 2002, more than 30 years after his separation from service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no probative evidence of record showing a nexus between the Veteran's current tinnitus and his period of active service. The nexus element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253. Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for tinnitus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs