Citation Nr: 1326085 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-11 509 ) 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 Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from March 1968 to January 1976. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Tinnitus was not present in service and is not otherwise shown to be related to any incident of service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in January 2010 prior to the initial rating decision. This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a 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). Here, the Veteran's statements, his service treatment records, and post-service VA treatment records have been associated with the claims folder. The Veteran was provided with a VA examination in April 2010. The Board finds that the VA examination report was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history and lay statements, and described the Veteran's tinnitus in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. at 495-96. The Board does point out, however, that in Walker v. Shinseki, 708 F.3d 1331 (2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Tinnitus is not listed under § 3.309(a) and therefore evidence of continuity of symptomatology cannot be used to establish service connection the in this case. The Board notes that the United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can 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, 1377 (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 notes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. 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 (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 Veteran is claiming entitlement to service connection for tinnitus. The Veteran's military occupational specialty (MOS) was field artillery crewman and he served in Vietnam from October 1968 to April 1970. Having reviewed the evidence of record, the Board finds it reasonable to conclude that the Veteran was exposed to loud noise as a field artillery crewman in Vietnam. 38 U.S.C.A. § 1154. However, although the Veteran experienced noise exposure in service, tinnitus is not shown to be a result of this exposure. In a December 2009 statement the Veteran reported that he was exposed to hazardous noise while in service and that he has suffered from tinnitus since his exposure. At an April 2010 VA audiological examination, the Veteran reported intermittent bilateral whistling tinnitus that began after he left service in 1976. The Veteran also reported that he was exposed to noise from 8in, 155mm, and 175mm Howitzers. While the Board notes that the Veteran is competent to report the onset of symptoms of tinnitus, in weighing the evidence the Board must also assess the credibility of the reported onset. In addition to the slight inconsistency in the Veteran's report of onset, when viewing these statements in conjunction with the remaining evidence of record, the Board does not find them to be credible. Service treatment records are negative for any complaints of tinnitus or ringing in the ears. Furthermore, during service the Veteran underwent audiograms in August 1968, April 1971, March 1974, and on separation in December 1975. The Veteran did not report any symptoms of tinnitus. It would be reasonable to assume that he would have reported tinnitus during these times if he was in fact experiencing it. Additionally, post-service VA medical records are negative for complaints of tinnitus and the first evidence of record that the Veteran suffered from tinnitus in service is the Veteran's December 2009 claim, approximately 30 years after service. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the lack of complaints of tinnitus in-service and for approximately three decades after military service diminish the credibility and probative value of the Veteran's statements regarding any tinnitus in-service. The Board has also considered the Veteran's assertion that he has suffered from tinnitus since service. However, as stated, the use of continuity of symptomatology to establish service connection does not apply to tinnitus and therefore no discussion of the Veteran's assertion is required. See Walker, supra. Finally, the Board acknowledges the Veteran's statements asserting a nexus between his currently diagnosed tinnitus and military service. While the Board reiterates that he is competent to report the onset of symptoms, the Veteran does not have the medical expertise to provide competent evidence on the question of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person). Furthermore, the April 2010 examiner opined that due to the absence of complaints of tinnitus in the service medical records and no evidence of acoustic damage, the Veteran's tinnitus was not related to service. Again, the VA examiner considered the Veteran's claims file and medical history in her report. The VA examiner also provided an etiological opinion, complete with the rationale described above. As such, the Board assigns greater probative value to the VA examiner's opinion that the Veteran's tinnitus is not related to service. For all the foregoing reasons, the Board finds that the claim for service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs