Citation Nr: 1326727 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-08 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from July 1968 to February 1970, including service in the Republic of Vietnam. He was awarded the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for tinnitus was remanded for further development by the Board in February 2011 to afford the Veteran proper notice under Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice was provided in March 2011. The issue was then reopened and remanded on the merits in August 2012 to afford the Veteran a VA examination and nexus opinion regarding the onset and etiology of the Veteran's tinnitus. In August 2012, the Veteran attended a VA examination. The examiner provided the requested opinion with rationale. The Board acknowledges the Veteran's February 2013 statement that asserts an insufficient examination, but the Board finds that although the VA examiner did not specifically restate the Veteran's quote from the American Tinnitus Association, the examiner essentially addressed the Veteran's assertion and the substance of the quote and supported his findings with medical and scientific literature. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss has been raised by the record in a June 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was exposed to loud noise during active service. 2. The Veteran's tinnitus did not manifest during service and is not causally or etiologically related to the noise exposure during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a VCAA letter dated March 2011, VA's notice requirements were met. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, private medical reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in August 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings. Therefore, the examination report is adequate to decide the claim of service connection. Thus, further examination is not necessary regarding the issue on appeal. Service Connection - Tinnitus Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 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 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 his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Given the nature of the Veteran's service, his exposure to acoustic trauma in service is accepted. For his part, the Veteran contends that he has tinnitus that is related to his noise exposure during service, and that he has had symptoms of tinnitus since service. It also has been contended that the tinnitus is secondary to treatment for meningitis or anti-malarial medication taken in service. The Veteran is not shown to be competent to identify a cause for tinnitus, although he is competent to assert the presence of its symptoms. However, the Board does not find his assertion of on-going tinnitus since service to be credible. This is conclusion is based on a number of reasons. First, it is observed the service treatment records are silent regarding any complaints, treatment, or diagnosis of tinnitus. Likewise, on the February 1970 separation report of medical examination, the examiner noted the Veteran's ears and drums were clinically normal. In addition, the corresponding report of medical history made no mention of ear trouble or hearing loss, and at a May 1983 VA examination, the Veteran reported that his tinnitus had an onset six months prior. Furthermore, while in 1987, the Veteran reported its presence for 17 years, he reported a different date of onset of symptoms during the May 2008 examination, stating that he first noticed the ringing in his ears in 1985. These facts, and the Veteran's inconsistencies render his assertions concerning an on-going presence of tinnitus since service to be accorded little probative value. Turning to the medical documentation addressing the etiology of tinnitus, there are essentially 4 pieces of evidence. These are the reports of VA examinations dated in May 2008 and August 2012, together with a private treatment record dated in June 2011, and a private audiogram with statement dated in November 2012. The June 2011 record simply reflects the view that the Veteran's tinnitus is "probably" service related. The August 2012 record included the statement that "tinnitus is as likely as not related to excessive noise while in military service." No rationale was provided for these opinions, and indeed, the use of the word "probably" in the first statement is so tentative by its own terms, that it cannot be accorded much weight. Likewise, an opinion that contains only data, and a conclusion as in the second document, is not accorded any weight. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). On the other hand, the Board finds the VA opinions to be very probative, and as they are adverse, the weight of the evidence is against the claim. Specifically, the Board notes at the May 2008 examination, the Veteran could not recall having any disturbances or tinnitus in his ears during military service. The examiner noted that the Veteran's service treatment records showed no evidence of problems with his ear drums, ear drainage, tinnitus, acoustic trauma, or head injury. The examiner also noted that only seldom does noise cause a permanent tinnitus without also causing hearing loss, citing scientific literature to support his statement, and observed the Veteran separated from service with normal bilateral hearing sensitivity. The Veteran first complained of bilateral tinnitus at the time of his May 1983 examination, twelve to thirteen years after his military separation. The examiner found no research evidence that supports late onset tinnitus, twelve to thirteen years after an event of hazardous noise exposure. The examiner also noted the Veteran's assertion that his tinnitus may be due to the prophylactic anti-malarial medication he was taking in Vietnam during military service. The examiner explained, however, that prophylactic doses are insufficient in causing ototoxic effects, and that ototoxic effects would occur within days or weeks of taking medications, not years later. Therefore, the examiner found that the Veteran's bilateral tinnitus was not due to or aggravated by his history of military noise exposure, use of anti-malaria medications, or any event during military service. With respect to the August 2012 VA examination, the examiner reviewed the Veteran's claims file and service treatment records. He provided a thorough history of the Veteran's complaints and treatments, as well as a physical examination. The examiner opined that the Veteran's bilateral tinnitus was not caused by or a result of or permanently aggravated by his history of military noise exposure, use of anti-malaria medications, meningitis, or treatment for meningitis, or any event during military service. The examiner found the Veteran's bilateral tinnitus is most likely a normal tinnitus as researched and defined by the Heller Bergman study. The examiner noted the Veteran entered and exited active military service with normal bilateral hearing sensitivity; there was no statically significant, permanent decrease in his bilateral hearing sensitivity during military service; and the Veteran's records showed no permanent OSHA or NIOSH shift in either ear during service. The 30 dB hearing loss at 6000 Hz in his right ear on his 1971 separation examination and the 30 dB hearing loss on an undated military Maico audiogram at 3000 and 6000 Hz were temporary compared to his 1983 and 1965 audiograms, and such temporary decreases are most consistent with examiner or patient errors such as improper placement of headphones, recording errors, or patient inattention. The examiner noted that any hearing loss the Veteran may have had during military service was only temporary in nature. Research studies have shown that hazardous noise exposure has an immediate effect on hearing and it is usually temporary or cumulative. He referenced three scientific publications to support his statement. The examiner went on to note that any tinnitus the Veteran may have had during military service was only temporary in nature. He quoted Tinnitus: Theory & Management, by James B. Snow Jr., MD, BC Decker Inc. 2004, stating "Brief spontaneous tinnitus, seconds to minutes, is a nearly universal sensation. Temporary tinnitus, lasting minutes to hours, occurs routinely after noise exposures that are sufficiently intense and/or prolonged to cause temporary injury to the ear. The examiner went on to cite additional medical literature noting that noise only seldom causes permanent tinnitus without also causing hearing loss. The examiner noted that hearing loss is the most common cause of tinnitus. The greater the hearing loss, the greater the possibility of one experiencing tinnitus. Here, the Veteran had no permanent hearing loss at the time of his military separation. The examiner also found no research evidence to support a claim of delayed-onset tinnitus following an incident of noise exposure. As indicated above, tinnitus has an immediate, temporary onset after significant noise exposure. The examiner found no evidence to establish a nexus with military service. In the examiner's opinion, the Veteran's tinnitus was most likely a normal tinnitus as researched and described by Heller and Bergman and perpetuated and/or aggravated by a condition reflex. Heller and Bergman found that 94 percent of their normal hearing adults who initially denied having tinnitus reported hearing a buzzing, ringing, or humming sound when placed in a soundproof booth and asked to listen for them. The Veteran's reports exhibit characteristics of a Heller and Bergman tinnitus perpetuated by a condition reflex. The Veteran's tinnitus is greater in quiet settings. The Veteran stated in March 1988 that he always thought everybody had some sort of ringing in the ear. Also the examiner noted that the tinnitus related conditioned reflex began when the Veteran first filed a claim for monetary compensation for ringing in the ears. The examiner cited evidence that simply offering a monetary reward for tinnitus can increase its expression in certain patients. Increased concern for your tinnitus results in an increase in its importance, which increases the amount of time you pay attention to it, which in turn increases your distress, creating a vicious circle. Finally, the examiner concluded that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss; however it is less likely than not caused by or a result of military noise exposure. Given the explanations provided for the adverse medical opinions as compared to the absence of any explanations given for the favorable opinions, the Board is compelled to accord greater evidentiary weight to the adverse opinions. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs