Citation Nr: 1325566	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  11-14 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

O. Lopez, Associate Counsel







INTRODUCTION

The Veteran served on active duty from September 1972 to August 1975, from February 1991 to August 1991, in October 2001, from March 2003 to June 2003, and from May 2007 to August 2007. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 


FINDING OF FACT

The competent and credible evidence fails to establish that the Veteran's tinnitus had its onset in service or is otherwise related to his active 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. § 3.303(a) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims 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). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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).  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).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id. 

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board. Indeed, VA's duty to notify has been satisfied. The Veteran was notified by the RO in a letter dated in January 2010 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements and predated the initial adjudication by the RO in May 2010.

VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran to obtain service treatment records (STRs) and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.19 (2012). 

The Veteran's STRs have been obtained and associated with the claims file, despite problems locating them initially.  The Veteran's VA treatment records are also of record.  No outstanding evidence, with respect to this issue, has been indentified that has not otherwise been obtained.

VA also provided an examination in April 2010 to address the nature and etiology of the claimed tinnitus. 38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312  (2007).  The Board finds that the April 2010 VA examination was adequate. The VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c) (4). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  No further notice or assistance is required to fulfill VA's duty to assist 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. Merits of the Claim

The Veteran seeks service connection for tinnitus, which he states was caused by the loud noise to which he was exposed in the service while working as communications repairman in close proximity to active aircraft and in airfields.  The Veteran states that he has experienced tinnitus ever since his exposure to what he describes as acoustic trauma in service.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In deciding a claim, the Board must consider all information and lay and medical evidence of record.  The Board must provide reasons and bases to support its decision.  However, the Board need not discuss in detail every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).
When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). 

The Veteran's STRs are negative for any complaints, treatment, or diagnosis of tinnitus.  In fact, the Veteran first complained of tinnitus at the time he filed a claim for service connection in November 2009.  In documents received in November 2009, he stated he had experienced tinnitus since his exposure to "acoustic trauma" in service. 

The Veteran informed the audiologist who examined him in April 2010 that he hears a constant bilateral moderate cicada-like sound, which he first noticed in service.  The Veteran attributed the sound to noise exposure that he experienced in service.  The audiologist opined that it is not as likely as not that tinnitus is related to service.  In support of her opinion, the audiologist stated that the STRs contained several medical history forms on which the Veteran denied having tinnitus and, further, that no complaints of tinnitus were found in the STRs. 

The Veteran, through his representative, points out that he is competent to report symptoms of tinnitus and states that there is no reason to doubt his credibility in reporting having ringing in his ears since service.  The Veteran's representative acknowledges that there is no evidence of the Veteran's tinnitus until his claim was received by the VA in November 2009, but states that the Board should find his assertions to be both competent and credible because there is no evidence to the contrary.  

The Board notes that the Veteran is indeed competent to self-diagnose tinnitus because ringing in the ears is capable of lay observation.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  He is equally competent to state that the onset of his tinnitus occurred in service, and that it has remained chronic since that time.  VA has also previously conceded that the Veteran incurred in-service noise exposure.  However, as to whether there is a causal relationship or "nexus" between Veteran's tinnitus and his in-service noise exposure, the Board concludes, for the reasons stated below, that the preponderance of the evidence is against such a finding.  The criteria for service connection for tinnitus have not been met. 

In assessing the credibility and probative weight of evidence, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).   Here, the Board has considered all the evidence of record, but finds the most probative evidence to be the Veteran's own endorsements in medical records which contradict his statement that he experienced tinnitus in service.  As stated above, the Veteran's STRs are negative for any complaints, treatment, or diagnosis of tinnitus.  More to the point, the STRs reveal that the he denied that he had tinnitus in June and July 2007 on post-deployment health assessment forms.  These endorsements were not oversights and were not made without due consideration because, on those same forms, he endorsed that he had runny nose, chronic cough, skin disease or rashes, and redness of the eyes.  

Put another way, had he been experiencing tinnitus in service, as he now states, the Veteran would have mentioned the same just like he did it with other symptoms/complaints that he reported.  He has not provided any reasonable argument as to why he purposefully denied experiencing tinnitus when he was more than willing to endorse other conditions.

In addition, there can be no argument that tinnitus developed during the Veteran's earlier periods of service.  Twice, on medical forms dated in November 1990 and in January 1996, where he reported his medical history, he denied any ear, nose, and throat trouble.  Moreover, on an August 1975 report of medical history, which he completed on separation from his period of active duty, the Veteran explained that the ear, nose, or throat trouble he endorsed pertained only to throat trouble he had since childhood. 

The Veteran does not explain why, despite now claiming to have experienced tinnitus with onset during service at the time of exposure to loud noise, he consistently denied having tinnitus on the multiple opportunities that he had to report it throughout his service.  Despite the Veteran's contention that there is no reason to doubt his credibility and that there is no evidence to contradict that he had tinnitus in service, his endorsements particularly those in the June 2007 and July 2007 medical forms show that he did not have tinnitus in service and, therefore, that his recent reports of such are not credible. 

As the Veteran's representative points out, "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  See Buchanan, 451 F.3d at 1137.  The Board, however, may consider the absence of contemporaneous medical to be a factor in its credibility determination.  Id.  And, here, the Board determines that the Veteran's lay statement that tinnitus began in service lacks credibility not only because there are no complaints about tinnitus in the STRs, but because the Veteran denied specifically having had tinnitus on medical forms in which he was specifically asked the question, while at the same he indicated that he had symptoms of other medical problems.  The Board finds that this affirmative evidence of lack of credibility impacts negatively on the value of the Veteran's statements that he had tinnitus with onset in service and, hence, the Board affords his nexus statements very little weight.  

Weighing the evidence of record, including the Veteran's statement that he had tinnitus in service, the Veteran's endorsements in June and July 2007, which show the opposite, and the audiologist's opinion that the Veteran's tinnitus is not as likely as not related to military service, the Board finds that the preponderance of the evidence is against a finding that the Veteran's tinnitus is related to service. 

For the reasons stated above, the Board concludes that the criteria for service connection for tinnitus have not been met.  In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for tinnitus is denied. 



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs