Citation Nr: 1324252 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-50 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim to service connect tinnitus. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In June 2012, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a personal hearing held via videoconferencing equipment. A transcript of the proceedings has been associated with the claims file. This matter was before the Board in October 2012 and March 2013. Each time, the Board remanded the claim for additional development, specifically for the provision of a VA examination. The Veteran has submitted informal notices of disagreement to the disability ratings assigned to his hearing loss and coronary artery disease, an informal claim for an increased disability rating for prostatitis, and an informal claim to service connect melanoma. The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's tinnitus did not have its onset in active duty service, and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). The VA must inform the claimant of any information and 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 expected to provide. 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). Compliance with the first Quartuccio element requires notice of these five elements. See id., at 486. The duty to notify has been satisfied. VCAA notice was sent to the Veteran in December 17, 2009, which also contained the notifications required by Dingess. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The duty to assist has also been satisfied. The Veteran's STRs and post-service medical records have been associated with the file. The Veteran has been afforded VA examinations for tinnitus in December 2012 and June 2013, and the reports are included in the file. The Board finds the examination reports, in aggregate, are adequate to adjudicate the Veteran's claims, as the examiner rendered them with background knowledge of the Veteran's medical history, and fully supported all opinions with explanatory rationale. Further, the examination reports directly address the issue under consideration. In regard to the October 2012 and March 2013 remands, the Board finds that there has been substantial compliance with the remand directives, which included obtaining records, scheduling VA examinations, and obtaining addendum medical opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was afforded a hearing before an AVLJ in June 2010, during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing (1) fully explain the issue, and (2) suggest the submission of evidence that may have been overlooked. Here, the parties agreed the issues under appeal were service connection for tinnitus, among other claims no longer before the Board. The Veteran presented testimony as to why he thought his tinnitus was related to service. Thus it was clear that the Veteran and his representative understood that a nexus opinion was needed to substantiate his claim. Additional evidence was not suggested, however, the Veteran was provided with VA examinations to obtain nexus opinions. To that end, 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 hearings. Accordingly, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. The Veteran entered and exited service with a normal clinical evaluation of his ears. In December 1998, his private physician diagnosed tinnitus, noting that it had been present since September 1998. An undated "Audiology Case History" form that was completed by the Veteran and filed in 2012 says that tinnitus started in 1998. At the December 2012 VA examination, the Veteran reported that tinnitus began in 1998. The VA examiner opined that tinnitus was not likely caused by military noise exposure because it did not incept until 1998, which was 13 years after separation from service. At the June 2013 VA examination, the Veteran reported that tinnitus began in 1998. The VA examiner opined that it was not likely caused or aggravated by his bilateral hearing loss, because hearing loss incepted during service and tinnitus did not incept until 1998, which is 13 years after service. The Veteran submitted multiple statements in support of his claim. In April 2005, he said that tinnitus began in November 1998, and persists to the present. In April 2010, the Veteran said that tinnitus started as an eventual by-product of hearing loss. In December 2011, the Veteran said that tinnitus did not start until years after service but that it is a related symptom of hearing loss. During the June 2012 hearing, he asserted that tinnitus is associated with hearing loss. In November 2012, he said that tinnitus started in December 1998. In June 2013, he said that he did not complain about tinnitus before 1998, but had it earlier than 1998. In July 2013, he said that he never said tinnitus started in 1998; rather, he sought treatment for it then, and it actually started one to two years after retirement. Based on the foregoing, the Board finds that service connection is not warranted for tinnitus. It is undisputed that the Veteran has tinnitus and that he was exposed to acoustic trauma during service. The final inquiry is whether there is a relationship between tinnitus and active duty military service. The VA examiners have opined that such a relationship is not likely, as tinnitus did not incept until years after service. They also did not find a relationship between tinnitus and his hearing loss, which is already service-connected, because tinnitus incepted years after hearing loss incepted. The Board finds these opinions probative to the issue, as they were rendered after a review of the claims folder and the Veteran's statements concerning his medical history, and are supported by explanatory rationale. There is no other probative evidence that contradicts the VA examiners' opinions. The Veteran's assertion that his tinnitus is a related by-product of hearing loss is not probative. The Veteran, although a dentist, has not been shown to have the expertise to competently opine on whether his tinnitus is a related symptom of his hearing loss. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, the possibility has been investigated by a VA examiner, who opined against such a relationship. Jandreau, supra. The Board recognizes that the Veteran may be repeating something his private physician told him, however, that does not affect the finding that the statement is not probative. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence). Records from his private physician do not address the etiology of his tinnitus. The Veteran's more recent assertion that tinnitus incepted earlier than 1998 are not probative because the Board does not find them credible. Indeed, he has consistently asserted that tinnitus began in 1998. Rucker v. Brown, 10 Vet. App. 67 (when determining whether lay evidence is satisfactory, the Board may consider its consistency with the other evidence). Further, medical records from 1998 indicate that it started in September 1998. The Board places greater weight on his previous statements and on the history that he provided to his private physician years ago than on more recent statements made in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility). There is no other evidence that probatively outweighs the VA examiners' opinions that tinnitus is not related to military noise exposure or to the Veteran's bilateral hearing loss. Accordingly, the preponderance of the evidence is against this claim, and under these circumstance, the benefit-of-the-doubt rule does not apply. Therefore, the Veteran's claim for service connection for tinnitus must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs