Citation Nr: 1326400 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-10 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from February 1959 to February 1961. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In February 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In March 2013, the Board remanded the case for further development. After completing the requested development, the Appeals Management Center (AMC) continued to deny the claim (as reflected in a June 2013 supplemental statement of the case (SSOC)) and returned the case to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. 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 Tinnitus did not manifest during active service and has not been shown to be causally related to the Veteran's military service. CONCLUSION OF LAW Tinnitus was not incurred in active service. 38 U.S.C.A. §§ 101(21), (24), 1110, 1154 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in June 2009, prior to the initial decision on the claim in September 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the content of the June 2009 letter satisfied the notice requirements. In this regard, the letter informed the Veteran of the information and evidence needed to substantiate his claim for service connection and notified him of the division of responsibilities in obtaining such evidence. The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess, 19 Vet. App. at 490-491. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA audiology examinations in August 2009 and February 2012. In March 2013, the Board remanded the issue to the RO to obtain a clarifying medical opinion to determine the nature and etiology of the Veteran's tinnitus. Specifically, the examiner was requested to provide an opinion as to whether the Veteran's current tinnitus is causally or etiologically related to his military service, including noise exposure. The examiner was also requested to "discuss medically known or theoretical causes of tinnitus and describe how tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how tinnitus develops from other causes, in determining the likelihood that current tinnitus was caused by noise exposure in service as opposed to some other cause." In accordance with the remand directives, a VA medical opinion was obtained in May 2013. The examiner provided the requested opinions in his report. Additionally, there has been no allegation that the opinion was inadequate. As previously noted, the Veteran was provided the opportunity to testify at a hearing before the undersigned Veterans Law Judge in February 2013. The undersigned Veterans Law Judge clearly set forth the issue to be discussed, and the hearing focused on the elements necessary to substantiate the claim. Questions were asked regarding the Veteran's symptoms in service and the progression of the disorder since service. The undersigned Veterans Law Judge also inquired as to whether the Veteran was receiving any current treatment in order to determine whether there was any outstanding evidence and asked whether the Veteran had spoken to any doctors about the cause of his current disorder in order to determine whether there may be a medical opinion that could be obtained from a treatment provider. For these reasons, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Laws and Regulations The Veteran contends that his current tinnitus was caused by noise exposure from a grenade explosion during basic training. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a) . Walker v. Shinseki, No. 2011-7184, slip op. at 13 (U.S. Fed. Cir. Feb. 21, 2013). Tinnitus is not listed as a chronic disease in the regulation. In order to establish entitlement to service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Factual Background and Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. The Veteran's DD-214 indicates that his Army military occupation specialty title was illustrator. In an October 1958 enlistment report of medical history, the Veteran noted that he had, or had a history of, ear, nose, or throat trouble. There were no further comments pertinent to the Veteran's ears in the report. However, an October 1958 enlistment examination report indicated a normal evaluation of the ears. Thus, the presumption of soundness applies in this case, and there is not clear and unmistakable evidence showing that he had preexisting tinnitus. The Veteran has not contended otherwise. In a January 1961 separation report of medical history, the Veteran also denied having ear, nose, or throat trouble. A January 1961 separation examination report further noted a normal evaluation of the ears. In the Veteran's May 2009 claim, he reported that his claimed tinnitus manifested during basic training and was aggravated by his service in the artillery from 1959 to 1961. He indicated that the tinnitus began in approximately March 1959 during his fourth week of basic training at Fort Dix when a live grenade was accidentally tossed near his position. He stated that he was lying prone to the ground and claimed that the grenade blew up near his face. He reported that he did not seek medical attention for fear that it would take him out of basic training and cause him to have to start over. He also related that his tinnitus was aggravated during his assignment to an artillery unit at Fort Sill. He stated that artillery explosions were normal occurrences at the artillery training ground. He reported that his tinnitus symptoms increased following service until he "finally sought medical attention some 20 years ago" for his symptoms. During an August 2009 VA audiology examination, the Veteran complained of bilateral recurrent tinnitus. He stated that he experienced acoustic trauma during basic training when a grenade exploded near him and that his ears began ringing after the explosion. He indicated that his tinnitus symptoms subsided three days later. He stated that he did not report the incident. He denied having any occupational or recreational noise following service. The Veteran reported that his tinnitus became "noticeable" over the past 40 years. He stated that he had episodes of intermittent tinnitus occurring one to two times per day and lasting a few minutes in duration. The diagnosis was tinnitus; however, the examiner opined that the Veteran's current tinnitus was not caused by or a result of his military service. In support of her opinion, she noted that the Veteran's military occupation specialty title was "illustrator" and that his service treatment records did not include complaints of tinnitus. In a November 2010 private treatment note, an ear, nose, and throat physician noted that the Veteran was exposed to artillery, small mortar, and heavy machine gun fire while stationed at Fort Sill. He indicated that the Veteran's tinnitus manifested after a grenade exploded close to his position, which deafened him for days and left him with permanent hearing loss and tinnitus. The Veteran reported that his tinnitus worsened with time and interfered with his ability to communicate and sleep. The physician noted that several attempts to treat the tinnitus were unsuccessful. He opined that there was "no question" that the Veteran's tinnitus was a "direct result of his military service." During a February 2012 VA audiology examination, the Veteran reported that his current tinnitus began during basic training when a grenade went off on his left side. He stated that he did not report his symptoms because he wanted to avoid repeating boot camp. Since then, he reported gradually declining hearing in both ears. He indicated that he wore hearing aids for several years that reduced his tinnitus, but noted that they did not fully suppress it. The examiner opined the Veteran's tinnitus was at least as likely as not a symptom associated with his nonservice-connected hearing loss. During the February 2013 hearing, the Veteran's representative stated that, according to a chart from the Deaf Oral School in Louisville, Kentucky, a shotgun blast is approximately 140 decibels, which is considered "profound" noise. He stated that hand grenades were not listed on the chart, but it would most likely be listed as a "profound" noise. The Veteran testified that, following the grenade explosion during basic training, he had "a lot of ringing" in his ears. He stated that he reported his symptoms to his drill sergeant who told him that if he had to go to the hospital, he might have to stay a few days and then he would have to start basic training over again following treatment. He indicated that the tinnitus "quiet[ed] down" after three days and that he "felt fine." He stated that he had intermittent ringing in his ears "quite often" in his thirties and forties. In the May 2013 VA medical opinion, the examiner stated that the Veteran's current tinnitus was consistent with his current nonservice-connected hearing loss. He noted that a review of his service treatment records showed no complaints or reports of tinnitus or hearing loss during service. He acknowledged the Veteran's contention that he experienced tinnitus at the time of the grenade explosion during boot camp, but that he did not report it because he did not want to repeat boot camp. However, the examiner noted that there was no documented evidence of complaints of tinnitus until 45 years after the Veteran separated from service. He noted that based upon the available evidence and "scientifically established patterns of hearing loss and tinnitus," there was no evidence of tinnitus or hearing loss at the time of discharge. He noted that tinnitus due to noise exposure or acoustic trauma is accompanied by hearing loss, and hearing loss due to noise exposure is immediate. However, there were also no complaints of hearing loss in the service treatment notes, and the January 1961 separation examination showed normal hearing. The examiner also stated that "decades of experience and scientific research" show no evidence of delayed-onset hearing loss due to noise exposure. Therefore, he opined that it was less likely as not that the current tinnitus was caused by or a result of military noise exposure. On review, the Board concludes that the Veteran's current tinnitus did not manifest in service. As previously noted, the Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnosis of tinnitus. While the Veteran is competent to report observable symptomatology in service, such as tinnitus, he has actually admitted that his tinnitus symptoms resolved during service. In fact, under oath, he testified in February 2013 that his tinnitus subsided within three days after the grenade explosion during basic training. He has also reported to a VA examiner that his current tinnitus was intermittent since his thirties and forties. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the weight of the evidence of record, including some of the Veteran's statements, show that his current tinnitus did not manifest in service or for many decades thereafter. In addition to the lack of evidence showing that his current tinnitus manifested during service, the evidence of record does not link any current diagnosis to the Veteran's service, including military noise exposure. The Board notes that the Veteran has a current diagnosis of tinnitus. He is also competent to report his history of noise exposure. Thus, the central question in this case is whether the Veteran's current tinnitus is related to his reported symptoms and exposure in service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the provider's knowledge and skill in analyzing the data, and the medical conclusion the provider reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In a November 2010 opinion, a private ear, nose, and throat physician opined that there was "no question" that the Veteran's tinnitus was a "direct result of his military service." The physician based his opinion on the Veteran's reported history. The Board notes that a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the Board cannot determine that a Veteran's statements lack credibility merely based on a lack of such documentation in the service treatment records). Here, the Board finds no reason to doubt the credibility of the Veteran's statements. Nevertheless, the Board finds that the May 2013 VA examiner's opinion to be more probative than the November 2010 private physician's opinion. The examiner reviewed the Veteran's reported history as well as the information and evidence in the claims folder, and he provided a thorough and adequate rationale that is supported by the evidence of record. Indeed, the examiner specifically discussed the Veteran's assertions as well as the lack of documentation of tinnitus in the service treatment records and for many decades thereafter. He also explained how tinnitus generally presents or develops based on experience and scientific research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that it is what an examiner learns from the claims file for use in forming the expert opinion that matters and that, when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). On the other hand, the November 2010 private medical physician did not discuss the fact that the Veteran's service treatment records were negative for any complaints, treatment, or diagnosis of tinnitus, including the affirmative findings at the time of the separation examination that revealed normal ears and hearing. He also did not acknowledge the decades-long evidentiary gap between the Veteran's separation from service and his first complaints regarding his tinnitus. Indeed, he did not account for the Veteran's statements indicating that his tinnitus subsided following the grenade explosion. Nor did he provide a thorough rationale, such as an explanation of how tinnitus usually develops or presents following noise exposure. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the opinion of the May 2013 VA examiner who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for tinnitus. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for tinnitus is not warranted. ORDER Service connection for tinnitus is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs