Citation Nr: 1327210 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-12 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement for service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Davis, Associate Counsel INTRODUCTION The Veteran had active military service from February 1991 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for tinnitus. FINDING OF FACT Tinnitus was not manifested in service and is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b) (1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Prior to the RO's adjudication of the claim, the Veteran was provided with a letter in April 2010 on the issue of entitlement to service connection for tinnitus containing all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. With regard to the duty to assist, the RO associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran has not identified any treatment records aside from those that are already of record. The Veteran was afforded a VA examination of his claimed disability on August 2010. This examination included a relevant medical opinion enumerating the reason and basis for the examiner's opinion. Neither the Veteran, nor any representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). As there is no indication of additional relevant outstanding evidence, the Board concludes that the duties to notify and assist have been satisfied with regard to notice and timing. Service Connection Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a presently diagnosed disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (2004). Regulation 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board observes that the Veteran is pursuing an appeal for tinnitus, attention must also be given to hearing loss. It is necessary to identify service connection factors for hearing loss because of the close symptomatic attenuation of tinnitus to hearing loss. With certain chronic disorders, including organic diseases of the nervous system, such as hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011); see also VA Under Secretary for Health letter dated October 4, 1995 (stating that it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability). See Walker v. Shinseki 708 F.3d 1331, 1334 (Fed Cir. 2013) also stating that chronic diseases are limited to those diseases found in 38 C.F.R. § 3.303(b), 3.309 (b) and for diseases not listed in 3.309(a) continuous symptoms are still relevant within the context of 3.309(b). This presumption, however, is rebuttable by probative evidence to the contrary Evidence must be proffered with regard to the existence/diagnosis of an injury as well as the nexus of the injury to service. Nexus can be supported by medical and lay evidence. With regard to lay evidence, the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). The Board may weigh such testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and (continuity of symptomatology) sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Merits of the Claim The Veteran contends that his disability resulted from his noise exposure as a member of a gun crew in service. He explains that his exposure to the gunfire as a member of the gun crew caused his tinnitus. At his VA examination in August 2010, the Veteran stated to the examiner that his tinnitus began in-service. The Board concedes that the Veteran was exposed to loud noises as a member of gun-fire crew, but does not concede that that these noises caused acoustic trauma and resulting tinnitus as he alleges in his claim. 38 U.S.C.A. § 1154(a). The pertinent medical evidence generally weighs against the claim and undermines the Veteran's credibility. While the Veteran's lay statements report he has had constant tinnitus since service caused by the sound exposure, the service treatment records do not corroborate the Veteran's statement. On three separate occasions in the Veteran's "Report of Medical History," the Veteran reports no problems with his ears. Specifically, in the Veteran's "Report of Medical History" at discharge he Veteran makes no complaints regarding tinnitus. Additionally, in the Veteran's "Report of Medical History," in November 1992, and in April 1991, he makes no complaints regarding tinnitus. Further, service treatment records show that the Veteran's hearing was tested five times through-out his service (March 1991, May 1992, November 1992, March 1993, and May 1993) and no auditory problems were reported. More recently, in the Veteran's August 2010 VA examination, the examiner acknowledged the Veteran's complaint that the onset of tinnitus was in service. However, the examiner reports: Pure tone test results indicated normal hearing bilaterally. Speech reception thresholds were in agreement with pure tone test results. Word recognition scores were excellent bilaterally. Tympanograms revealed normal middle ear pressure and mobility bilaterally. Acoustic reflex thresholds were present at normal sensation levels bilaterally. Acoustic reflex decay was negative bilaterally. After review of the [claims] file, audiometric data indicated normal hearing bilaterally from 500-6000 HZ in Feb and March 1991, Nov 1992 and [May] 1993. There were no complaints of hearing loss or tinnitus in the service medical records. There is no evidence of acoustic damage. Hearing thresholds were within normal limits bilaterally and do not meet the criteria for disability according to VA regulations. It is my opinion that it is NOT at least as likely as not that hearing loss is related to military service. Due to no evidence of acoustic damage and no complaints of tinnitus in the service medical records, it is my opinion that is NOT at least as likely as not that tinnitus is related to military service. The Board finds the VA examiner's opinion to be highly probative as it is predicated upon a thorough review of the claims folder and contains a rationale with discussion of the Veteran's medical history. The examiner accurately described the in-service and post-service evidence and explained the reasons for his conclusions: specifically, why the Veteran's time in service did not cause the current tinnitus disability. The Board finds a medical opinion more probative and adequate when it is supported by clinical evidence or other rationale to support the finding. Bloom v. West, 12 Vet. App 185, 187 (1999). The examiner proffered explanations for the lack of causal connection of the current disability to time in service, notably the lack of acoustic damage. (Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (the bulk of the probative value of a medical opinion is derived from its reasoning)., The Board finds it revealing that the examiner came to this conclusion after reviewed the Veteran's history, his claims file and considered his statement that the tinnitus began in service. Thus, the overwhelming weight of the medical evidence indicates a lack of nexus of the contended tinnitus to time in service. The Veteran offered lay evidence arguing his tinnitus had an onset when he was a member of a gun-crew in service. The Board has considered the Veteran's lay statements addressing the incurrence of tinnitus. The Veteran is competent to report his symptoms of tinnitus as these are observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Knowledge derived from a Veteran's senses, that which is heard, felt, seen, smelled or tasted is considered credible and competent. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he has difficulty hearing and whether he has ringing in his ears. The Board has also considered the Veteran's statement regarding the etiology of his disability and his theories on a causal connection to military service. While the Board finds the Veteran competent to impart his current symptoms and account for his in service experience, he is not able to make an etiological theory as he lacks medical training. 38 C.F.R. § 3.159(a)(1),(2) (2012). Moreover, there is no persuasive evidence of continuity of symptomatology. While the Veteran claims he has had tinnitus since service, the Veteran's service treatment records report objective findings of normal hearing throughout the Veteran's service. In his service treatment records, the Veteran indicates on three occasions, that he had no problems with his ears. Then, 16 years after his separation from service, the Veteran makes his first complaint of tinnitus in his current claim for compensation in April 2010. The Veteran earlier denials of any problems with his ears contradict his statement now that his symptoms of tinnitus began in service. Moreover, this same statement was made to the VA examiner in August 2010, and the examiner still opined that the tinnitus was less likely than not related to the Veteran's service. In view of these factors, the Board finds that the credibility of the Veteran's current allegation that his tinnitus has existed and persisted since service is undermined by his own contradictory statements, and the VA examiner's conclusion that the Veteran's statements concerning the onset of tinnitus was contracting by the evidence of record. Thus, The Board reiterates that there is no persuasive evidence of continuity of symptomatology or that the Veteran's tinnitus is etiologically related in any way to service. The Veteran has not presented any competent or credible lay or medical evidence to contradict the August 2010 VA examination an opinion. This lack of persuasive evidence weighs against the Veteran's claim. Taken together, the competent and credible medical evidence and opinion of the 2010 VA medical examination prevail over the Veteran's contentions and lay evidence. Therefore, the preponderance of the evidence is against the Veteran's claim. As such, reasonable doubt does not arise and entitlement to service connection is not warranted. ORDER Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs