Citation Nr: 1327957 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-05 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a disability manifested by joint pain. 3. Entitlement to service connection for a stomach disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Hartford, Connecticut. Initially, the Veteran also appealed denials of service connection for high cholesterol and drinking problems; however, he later withdrew these issues from his appeal in June 2010. The Veteran was afforded a June 2010 RO hearing. A hearing transcript is associated with the claims folder. A review of the Virtual VA paperless claims processing system includes a July 2013 Informal Hearing Presentation submitted by the Veteran's representative in support of his appeal. No other pertinent documents, that are not already associated with the claims folder, are found within Virtual VA. (The claims of service connection for a disability manifested by joint pain and a stomach disorder are addressed in a remand that follows the decision below.) FINDING OF FACT Tinnitus is not attributable to the Veteran's period of military service. CONCLUSION OF LAW The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notification and development action needed to arrive at a decision as to the claim of service connection for tinnitus has been accomplished. Through an October 2007 letter, the Veteran was notified of the information and evidence needed to substantiate his claim of service connection. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection. The letter also contained the general criteria for how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also finds that the October 2007 notice letter substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In this letter, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was encouraged to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records, VA outpatient treatment records, VA examination report, and statements from the Veteran. The Veteran was afforded a VA audiology examination in November 2009 with review of the claims folder. The examiner conducted a pertinent clinical audiology examination and expressed an opinion regarding the tinnitus claim. Although the comments supporting the opinion are brief, it is clear that the examiner based it upon absence of tinnitus complaints to treating primary care providers on multiple visits as indicated in VA treatment records from March 2003 through August 2008. Thus, the Board has properly assisted the Veteran by affording him an adequate VA audiology examination and medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus."). VA has a policy that sensorineural hearing loss is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. However, VA has not specifically recognized tinnitus as an organic disease of the nervous system and it is not considered a chronic disease. The chronic disease presumption is not helpful to the Veteran in this case. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as hearing problems, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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 relevant part, 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). When there is an approximate 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). The Veteran asserts that he has tinnitus that is attributable to his active military service. Specifically, he contends that he experienced noise exposure in service and developed tinnitus as a result. Service treatment records (STRs) do not show any complaint for tinnitus. Audiometric testing from his separation examination showed that his hearing was within normal limits. However, the Veteran's combat status is conceded and the provisions of 38 U.S.C.A. § 1154(b) have been considered. Hence, his reports about in-service acoustic trauma during combat are probative evidence of an in-service event. As tinnitus is readily capable of lay observation, his reports are sufficient evidence of a current disability. Layno, 6 Vet. App. at 469. The remaining issue is whether there is a nexus between current tinnitus and military service. The evidence supporting the claim consists of the Veteran's reports. A November 2009 VA examiner's opinion weighs against the claim. It is the Board's responsibility to evaluate the probative value of such evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (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 competent to report on his history of tinnitus; however, his assertions of a nexus must be considered in light of the remaining evidence of record. Id. Here, the Veteran has sought primary care (PC) treatment on numerous occasions. He has clearly demonstrated that he is well able to report for medical treatment and relate medical problems to treating healthcare providers. (See VA treatment records from March 2003 to January 2010). However, he did not report tinnitus symptoms as a problem during routine VA PC visits in March 2003, September 2004, December 2005, December 2006, and August 2008. His initial September 2007 claim identified "hearing problems" as the disability. He did not specifically identify tinnitus until his April 2009 notice of disagreement. Then, at the PC visit the following month, he started to complain about tinnitus. The Board finds his assertion of continuity of tinnitus beginning in service to be incredible in light of the absence of tinnitus complaints until the claim was on appeal. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Caluza, 7 Vet. App. at 510-511; Madden, 125 F. 3d at 1481. In addition, the Board finds the negative assessment given by the November 2009 examiner persuasive. She examined the Veteran, reviewed the claims folder, and provided a negative opinion. The rationale is plausible and uncontroverted by any other medical opinion. It is based upon the same reasoning of an absence of complaints in clinical records as discussed above. The Board considers it persuasive evidence weighing against a finding of a medical nexus to military service. Barr, 21 Vet. App. at 312. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is consequently not helpful to the Veteran, and the claim of service connection for tinnitus must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for tinnitus is denied. REMAND VA examinations are necessary for the claimed joint pain and stomach disorder. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding that an examination is necessary is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. (The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.) Here, the Veteran is shown to have served in combat and his reports of physically stressful combat related activities, such as a jumping out of helicopters, are sufficient to establish an in-service event. 38 U.S.C.A. § 1154(b). Although he denied having recurrent back pain on his December 1967 Report of Medical History, he reports having joint pain shortly after service and seeking medical attention. See June 2010 RO Hearing. A current X-ray report confirms osteoarthritis of the lumbar spine. See VA treatment records from May 2009. As noted, the threshold for finding a link between service and current disability is low for purposes of finding that an examination is required. Locklear, 20 Vet. App. at 410. A VA examination is necessary to adjudicate this claim as detailed below. For the stomach disability, STRs from November 1967 reflect that the Veteran complained about "excess acidity." On his December 1967 Report of Medical History, he denied having stomach, liver or intestinal trouble. In VA PTSD treatment records from November 2007, he reported having a "nervous stomach" in connection with anxiety. At June 2010 RO hearing, he recalled that he developed stomach problems in the early 1990s and they were related to service-connected PTSD. Again, the standard is low for finding a link to service for purposes of triggering VA's duty to provide a medical examination. Locklear, 20 Vet. App. at 410. A VA examination is necessary to adjudicate this claim as detailed below. Accordingly, the case is REMANDED for the following action: 1. Take the necessary steps to obtain all pertinent updated VA treatment records beginning in September 2010. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeal. 2. After obtaining and associating updated treatment records with the claims folder, schedule the Veteran for a VA joint examination. A clinical examination with all indicated tests and studies should be conducted. The claims folder, this remand, and access to the Virtual VA/ VBMS efolder, must be given to the examiner for review. The examiner must opine on whether it is at least as likely as not (50 percent probability or more) that any current joint disorder is attributable to the Veteran's period of military service. The examiner must consider the Veteran's reports of combat activities and private medical treatment in the early 1970s for joint pain. If the examiner rejects any pertinent lay report, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After obtaining and associating updated treatment records with the claims folder, schedule the Veteran for a VA stomach/ digestive examination. A clinical examination with all indicated tests and studies should be conducted. The claims folder, this remand, and access to the Virtual VA/ VBMS efolder, must be given to the examiner for review. The examiner must provide the following opinions: (a) Is it at least as likely as not (50 percent probability or more) that any current stomach or related disorder is attributable to the Veteran's period of military service? (The examiner should consider the October 1967 STRs reflecting stomach problems.) (b) Is it at least as likely as not (50 percent probability or more) that any current stomach or related disorder has been caused or made worse by service-connected PTSD? (The examiner should consider November 2007 VA treatment records.) The examiner must provide a detailed rationale for the opinions. The Veteran is competent to report on his history of stomach symptoms and such reports must be considered. If the examiner rejects the lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. The AOJ should ensure that the examination reports comply with the instructions in this remand. Thereafter, the AOJ should undertake any additional evidentiary development deemed appropriate and re-adjudicate the claims. If a benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case and provide opportunity for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs