Citation Nr: 1325204 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-41 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anna-Lisa Evans INTRODUCTION The Veteran had active service from October 1970 to March 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of the hearing has been associated with the claims folder. In August 2012, the Board remanded the Veteran's tinnitus claim for further development, to specifically include affording him a VA examination. The development indicated in the August 2012 remand has been accomplished (the Veteran was provided an adequate VA examination in September 2012). See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board will proceed to adjudicate the merits of this appeal. FINDING OF FACT The preponderance of the evidence shows that the Veteran's tinnitus was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including in-service acoustic trauma. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability rating. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, the duty to notify was satisfied by way of a letter sent to the Veteran in June 2008 that fully addressed all notice elements and was sent prior to the initial adjudication of his claim in October 2008. The letter informed him of what evidence was required to substantiate the claim and VA's respective duties for obtaining evidence. In addition, letter advised him of how to substantiate a claim for secondary service connection. He was also asked to submit to the RO evidence and information in his possession. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 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 the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records. The Board notes that the Veteran was afforded VA examinations regarding his claim. VA examined the medical history of the claimed condition for compensation purposes addressing the claim. Findings from the examination reports are adequate for the purpose of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 12, 124 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the 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. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the tinnitus claim. The VLJ asked specific and relevant questions, however, directed at identifying whether the Veteran had symptoms meeting the criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, 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 Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). This case was previously before the Board and was remanded in August 2012 for the RO to obtain VA treatment records and to provide the Veteran with a VA medical examination to determine the nature and etiology of his tinnitus disorder. There has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran is seeking to establish service connection for tinnitus. 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 making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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 a 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-Rodriguez, 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."). The Board observes that the Veteran is diagnosed as having tinnitus. The Veteran has been treated for ringing in his ears. Thus, the question is not if whether at any time since his claim for service connection there has existed a current disability. Rather, the question involves the onset and etiology of this disability. The service treatment records show that in June 1971, the Veteran complained of a sudden painless loss of hearing in his right ear. In September 1971, he reported a painless loss of hearing in his right ear. He was diagnosed as suffering from a cerumen block in his right tympanic canal as well as otitis media. He had repeated treatment for his ear conditions from September 1971 to January 1972. Post-service treatment records dated in March 2008 reflect a private treatment record in which the Veteran complained of left ear pressure. The Veteran stated that he heard noise or ringing in his left ear. He indicated that he had suffered from left ear related symptoms for several years, which had recently gotten worse. Upon examination, the examiner found that the Veteran's canals were free of cerumen, edema or inflammation;the diagnosis was minimal left sided hearing loss with associated tinnitus and pressure. Also noted was that the tinnitus may be related to an asymmetry in sensorineural hearing loss, possibly from a variant of Meniere's disease, but that it could also be related to Eustachian tube dysfunction. The Veteran was afforded a VA examination in April 2008, and tinnitus was again confirmed. The Veteran stated that he felt a constant pressure in his left ear, as well as ringing. He indicated that his military occupational specialty in service was a tank gunner and he fired machine guns, as well as M-16's, without ear protection. The Veteran stated that he also flew helicopters while in Vietnam. He denied any occupational or recreational noise exposure. The examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure. The examiner stated that the onset of the Veteran's tinnitus was recent (the past two years), relative to his military service separation date. In addition, the Veteran's tinnitus was associated with fullness and pressure in the ear and his symptoms were diagnosed as Meniere's disease (by the Veteran's report), which the examiner reported is not a result of noise exposure. At his November 2011 Travel Board hearing, the Veteran noted that he suffered from acoustic trauma while in service. He stated that he would have to sleep next to helicopters while on guard duty. He noted that there was no ear protection provided. The Veteran stated that the ringing started about 15 to 20 years ago, and that there was constant ringing in his left ear. He also indicated that there was pressure in his ear on a daily basis and that he experienced flare-ups that lasted five or six hours. He noted that pressure traveled to his eyes and neck. He stated that after his separation from service, he worked as a clerk for the Postal Service where he was exposed to noise, but that ear plugs and ear protection were provided. At the September 2012 VA examination, the Veteran indicated that the onset of his tinnitus was in the mid to late 1990's. It was noted that the Veteran had constant subjective tinnitus in his left ear and that the hissing and ringing sound were moderately severe. The examiner opined that the Veteran's tinnitus was at least as likely as not a symptom associated with the hearing loss, as the condition was known to be a symptom of hearing loss. Further, the examiner explained that the Veteran's tinnitus was less likely than not caused by or a result of military exposure. The rationale provided reflected that the ear condition the Veteran sought treatment for while in service was a temporary condition and there is no evidence of residuals found today. Thus, it was the opinion of the examiner that a nexus could not be made between the Veteran's tinnitus and his in-service ear problems. Further, the examiner noted that according to the "Noise Manual" (Fifth Edition, edited by Berger et al., AIHA Press 2000, pg. 125), "only seldom does noise cause a permanent tinnitus without also causing hearing loss." The examiner stated that since there was no evidence of hearing loss at separation and the Veteran reported the onset of tinnitus decades after separation, combined with the fact that the March 2008 VA examiner noted that the Veteran's condition may possibly be related to Meniere's disease or ET dysfunction (not attributed to noise exposure), that it was his clinical opinion that a nexus could not be established and that the Veteran's tinnitus was not caused by or a result of, or causally related to military service. Upon careful review of the record, the Board finds that service connection for tinnitus is not warranted. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no probative evidence establishing a medical nexus between military service and the Veteran's tinnitus disorder. Rather, the evidence of record weighs against such a finding. The record reflects a diagnosis of tinnitus. However, there is no medical evidence of record linking the Veteran's current tinnitus to his active duty service. In this case, the Board finds that the medical opinions are competent and highly probative. The April 2008 VA examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure. In addition, September 2012 VA examiner opined that the Veteran reported the onset of tinnitus decades after separation and that there was evidence that the Veteran's tinnitus disorder was not attributable to in-service noise exposure. The VA examiners, based their opinions on a review of the Veteran's medical records, the Veteran's lay report of the onset of his disability, the results of objective testing in the case of the VA examinations, and their specialized training, and concluded that the Veteran's tinnitus was less likely than not related to service. As such, the competent medical evidence of record does not support the assertion that his tinnitus disorder is related to his active service The Board acknowledges that the Veteran has submitted written statements regarding his noise exposure in service and testimony discussing his symptoms. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds him to be credible in this regard. However, the Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current tinnitus and exposure to loud noise during military service. In addition, the evidence of record does not establish a report of recurrent symptoms since service. The Veteran noted at his November 2011 hearing, that the onset of his condition started 15 to 20 years ago. Lay statements submitted by family members indicated that the Veteran's complaints regarding the ringing in his ears were noticed in 1993. The Veteran has not reported that his tinnitus began in service or shortly after separation, and there is no evidence of record that reflects chronic symptoms since active duty service. As such, the weight of the credible evidence shows that the Veteran's tinnitus first manifested many years after service is not related to service or any incident therein. As the preponderance of the evidence is against the Veteran's claims for service connection for tinnitus, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs