Citation Nr: 1326310 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-17 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to October 1981 and from January 1983 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that in relevant part denied service connection for tinnitus. Custody of the file was subsequently transferred to the RO in Lincoln, Nebraska, which is currently VA's Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's tinnitus is not etiologically related to service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5017(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Complete notification, to include the disability-rating and effective date elements of a service-connection claim, was provided to the Veteran by letter in February 2010, and he had ample opportunity to respond prior to issuance of the April 2010 rating decision on appeal. At any rate, the Veteran has not asserted prejudice in regard to any error in the timing or content of notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records (STRs) are of record. The STRs do not contain a separation physical examination; although not all service members are in fact afforded examinations at the time of discharge the RO made three documented attempts to obtain any additional in-service treatment records as documented in a June 2012 Formal Finding of Unavailability of Service Records, and the Board concludes there are no additional existing service treatment records to be procured. VA has no duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The RO has obtained the Veteran's post-service treatment records from those VA providers identified by the Veteran as potentially having relevant treatment records. The Veteran has also been afforded appropriate VA examination in regard to his claim for service connection. The Veteran was advised of his right to a hearing before the RO's Hearing Officer or before the Board, but he has not requested such a hearing. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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 continuity of his current symptomatology. 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, 581 F.3d 1313, 1316; 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, 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, and 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, 7 Vet. App. 498, 511. 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."). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show no indication of complaint of tinnitus during service. There is no indication the Veteran was enrolled in a hearing conservation program for duties subject to acoustic trauma. Audiograms in August 1984, August 1985 and September 1990 show the Veteran was issued earplugs; the September 1990 audiogram includes the notation, "not routinely exposed to hazardous noise." STRs do not include a separation physical examination. The RO submitted a request via the Personnel Information Exchange System (PIES) for any in-service treatment records not previously obtained, but a PIES response in August 2011 stated that no further STRs had been found at the National Personnel Records Center (NPRC). This was memorialized in a Formal Finding of Unavailability of Service Records in June 2012. The Veteran was discharged from service in September 1991. The Veteran submitted the instant claim in January 2010. He asserted therein that he had ringing in his ears that was intermittent but present on most days. The rating decision on appeal was issued in April 2010. In June 2010 the Veteran's representative filed a Notice of Disagreement (NOD) on the Veteran's behalf asserting the Veteran had continuous tinnitus since service that should be reasonably associated with exposure to loud noise, consistent with the Veteran's military occupational specialty (MOS) and performed without the benefit of hearing protection. The Veteran was afforded a VA audiological evaluation in March 2011, performed by an audiologist who reviewed the claims file. The Veteran asserted having tinnitus that began in 1993. He denied any precipitating event other than active service, during which he was a tracked vehicle and field artillery mechanic with exposure to excessive noise without hearing protection. He denied a history of civilian occupational or recreational noise exposure. The audiologist stated an opinion that tinnitus is not likely related to service. As rationale, the audiologist stated that there was no evidence in the claims file of tinnitus and no evidence of acoustic damage from the military. The Veteran submitted a Substantive Appeal in June 2011 in which he again asserted having had tinnitus that began in service and had been continuous since service. On review of the file, the only evidence supporting service connection is the Veteran's assertion, as expressed in the NOD and the Substantive Appeal, of tinnitus that began during service and has been continuous since service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. 465, 469. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, id., distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran's assertions in his NOD and Substantive Appeal of tinnitus that began during service and had been continuous since service are inconsistent with his assertion to the VA audiologist that tinnitus began in 1993, two years after his discharge from service. Thus, his reports of onset and continuity of tinnitus are internally inconsistent and accordingly not credible. In any event, evidence of continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, while the Veteran's account of continuous symptoms since service is probative, it is not a sufficient basis for granting service connection in the absence of supporting medical opinion. In this instance, the only medical opinion of record (the VA audiological evaluation in March 2011) is against the claim. Addressing the VA audiological opinion, the audiologist demonstrably was fully informed of the Veteran's medical history, as demonstrated by review of the claims file and recitation of the Veteran's subjective history. The audiologist also provided a fully-articulated opinion with supporting rationale. The audiological opinion is accordingly probative under the criteria of Nieves-Rodriguez. By submitted a claim for service connection the Veteran is asserting his personal belief that tinnitus is related to service. As noted above, the Veteran is competent to describe having tinnitus; however, tinnitus is an etiological disorder capable of multiple causes. Accordingly, it is not within the competence of a layperson to assert an opinion as to the cause of tinnitus. Kahana, 24 Vet. App. 428. Based on the evidence and analysis above the Board has found the criteria for service connection for tinnitus is not met. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs