Citation Nr: 1328036 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 13-04 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for tinnitus. The August 2010 also, in pertinent part, denied service connection for a skin disorder on the basis that new and material evidence sufficient to reopen a previously denied claim had not been submitted. In September 2010, the Veteran requested reconsideration of the August 2010 decision. In October 2012, the RO issued another rating decision denying the claim, and the Veteran filed another request for reconsideration in October 2012. To date, it does not appear that the RO has acted upon the Veteran's October 2012 request, as it relates to the claim for service connection for a skin disorder. Since the Board does not have jurisdiction over this claim, it is referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's tinnitus is not attributable to any acoustic trauma he experienced during active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must be provided prior to the initial adjudication of the claim and must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Prior to the initial August 2010 adjudication of the Veteran's claim, a letter dated in October 2009 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini II. The Veteran was also notified of the criteria for establishing an effective date and disability rating. See Dingess. In that regard, the Veteran received complete notice regarding his claim. The Veteran's service treatment records and VA authorized examination reports have been associated with the claims file. The Veteran was afforded a VA examination in August 2012, at which time the examiner determined that the Veteran's responses to audiometric testing were unreliable and did not render any etiological opinions. The Veteran was afforded another VA examination in December 2012. The Board finds that the resultant VA opinion is adequate; as it was predicated on a review of the claims file, contained a description of the history of the disability at issue, documented and considered the relevant medical facts and principles, and provided an opinion as to the etiology of the claimed disorder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining identified, authorized, and available treatment records and obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service 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). In order to establish service connection, the evidence must generally 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, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In addition, such may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112; 1131, 1133 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Tinnitus, however, is not such a disability; and service connection on the basis of continuous tinnitus from the time of service to the present is not available. 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 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (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, supra. 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). 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a November 2009 statement, the Veteran reported that it was hard for him to hear from both of his ears and that he had constant "hearing" in both ears, occurring from August 1986 until November 1993. In a November 2010 statement, he asserted that his tinnitus was related to exposure to loud noises during active service, including gunfire training and field artillery. Related to his claimed in-service noise exposure, in a November 2009 statement offered in connection to his claim for service connection for a psychiatric disorder, the Veteran reported that he was in Somalia in February 1993, while attached to his unit stationed in Germany, and was on guard duty when he exchanged fire with unknown individuals. The Veteran's service personnel records, specifically, his service separation form, his DD-214, indicates that his military occupational specialty (MOS) was petroleum supply, that he was in Southwest Asia from October 1990 to March 1991. Service personnel records demonstrate that he was in Germany from October 1991 to November 1993. While it is not clear that the Veteran was in Somalia, the Board concedes that the Veteran experienced noise exposure by his gunfire training and field artillery during active service. He has offered competent testimony as to his in-service experiences with noise exposure; there is no indication that the Veteran is not credible in this regard. See Layno. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of tinnitus. At his October 1993 service separation examination, he denied a history of ear trouble. The Veteran was afforded a VA examination in December 2012, during which he reported recurrent tinnitus, bilateral, and constant, beginning 12 years prior, in 2000. Subsequent to audiological examination and review of the claims file, the examiner opined that the Veteran's tinnitus was less likely related to his in-service noise exposure. She reasoned that the Veteran reported the onset of tinnitus was well past his release from active service. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. Absent credible evidence to the contrary, the Board is not in a position to further question the results of this examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). There is no other competent opinion in the record to refute these findings or to otherwise suggest that tinnitus was incurred in service. Based on the evidence of record, the Board finds that service connection for tinnitus is not warranted. Initially, as noted above, the Veteran's service treatment records are silent for complaint of tinnitus. He is competent to report the sensation of tinnitus during active service. See Layno. It appears that he reported to VA, in his November 2009 statement, noted above, that he had constant "hearing" in both ears, occurring from August 1986 until November 1993. The Board has read his statement considering that he most likely intended to write the word "tinnitus" instead of "hearing." However, he reported to the VA examiner, in December 2012, that the onset of his tinnitus was 12 years prior, in 2000 although in a later statement, he reported that the onset was upon his return from the Gulf War. See January 2013 VA Form 9. 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). Thus, as the Veteran's November 2009 and later assertion of in-service tinnitus is inconsistent with his December 2012 assertion that such began in 2000, the Board finds that the Veteran's assertion of in-service tinnitus is not credible and lacks probative value in the present appeal due to such inconsistencies. The Veteran has contended on his own behalf that his current tinnitus is related to the noise exposure he incurred during active service. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the question regarding the potential relationship between the Veteran's current tinnitus and service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that there must be some competent and credible evidence beyond the Veteran's own statement regarding causation to establish that any current tinnitus is related to his military service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for tinnitus is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs