Citation Nr: 1329244 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-29 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus. In October 2011, the RO denied service connection for pseudofolliculitis barbae. The Veteran filed a timely notice of disagreement (NOD) later in October 2011, and the RO issued a statement of the case (SOC) in March 2013. The Veteran has not perfected the pseudofolliculitis barbae claim, and thus that claim is not part of the current appeal. See 38 C.F.R. § 20.200 (2012). FINDINGS OF FACT 1. The Veteran has a current diagnosis of tinnitus. 2. The Veteran was exposed to hazardous noise while in service. 3. The Veteran's current tinnitus was not caused by exposure to hazardous noise while in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under the Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice was provided to the Veteran in March 2011, prior to the initial adjudication of his claim in June 2011. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. Further, the Veteran has not identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty to obtain a medical opinion when required. The Veteran was afforded a VA examination to address service connection for tinnitus in May 2011. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board finds that the VA examination and opinion obtained are adequate because the examiner reviewed the Veteran's claim file, considered relevant medical and post-service history, and performed a physical evaluation. Further, the examiner provided a sufficiently detailed description of the disability and provided an analysis to support her opinion. See id. For these reasons, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. 38 C.F.R. § 3.159(c)(4). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claim. II. Merits of the Claim The Veteran asserts that his exposure to excessive noise as an Air Force security policeman and ammunition supply technician caused his current tinnitus disability. For this reason, he states that he is entitled to service connection for his condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a 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, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, neither 38 C.F.R. § 3.303(b) nor 3.309(a) applies to the Veteran's claim for service connection for tinnitus. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. In this case, the Board finds that, while the Veteran has successfully met the first and second Shedden requirements to establish a claim for service connection under 38 C.F.R. § 3.303(d), he has not established the third and final element necessary to support his claim for service connection. For that reason, his claim must be denied. The Board will now address each of the aforementioned criteria in the context of the evidence of record. First, the record reflects that the Veteran has a current diagnosis of tinnitus. In May 2011, the Veteran reported that he has experienced tinnitus ever since suffering acoustic trauma while in service. See VA Form 21-4138. The Veteran described his symptoms to a VA examiner during a VA audiological examination in May 2011, explaining how he has had ringing in his ears for 20 to 30 years. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Further, the Veteran's self-diagnosis was clinically acknowledged by the May 2011 VA examiner. As both the Veteran and the VA examiner are competent to diagnosis tinnitus, and there is no evidence disputing the diagnosis, the Board finds that the Veteran has a current tinnitus disability. Second, the record reflects sufficient evidence to establish in-service noise exposure. As previously noted, the Veteran has described a pattern of significant noise exposure in service. He is competent to report such a history of acoustic trauma, which lies within the realm of his experience. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, the Board considers the Veteran's testimony regarding noise exposure to be credible as it is both internally consistent and in line with the other evidence of record. See Buchanan, 451 F.3d at 1336-37; Caluza, 7 Vet. App. at 511 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Specifically, the Veteran's DD Form 214 confirms that his military occupational specialties (MOS) were security specialist and inventory management specialist - munitions. Security forces are credited with moderate probability of hazardous noise exposure. See Veterans Benefits Administration Fast Letter 10-35 (September 2, 2010) (modifying the development process in claims for hearing loss and/or tinnitus). Accordingly, the Board resolves all reasonable remaining doubt in the Veteran's favor and accepts his account of in-service acoustic trauma. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (outlining benefit-of- the-doubt rule). After a comprehensive review of the evidence, however, the Board finds that the weight of the lay and medical evidence establishes that the Veteran's current tinnitus disability was not caused by the conceded in-service noise exposure. Service treatment records do not contain any complaints, symptoms, diagnoses or treatment attributed to tinnitus. The May 1984 separation examination contains a normal clinical evaluation of the ears. Notes found in the examination report highlight several areas of the Veteran's in-service medical history and make no mention of tinnitus or any associated symptoms. Further, the examiner noted that the Veteran denied any significant medical or surgical history at the time of the service separation examination. In this context, the Board observes that service treatment records weigh against a finding that tinnitus began in service. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The record shows that the Veteran has been seen at VA health clinics since service separation. In September 2008, the Veteran visited a VA primary care clinic and presented no health complaints. At a VA primary care clinic visit in July 2009, the Veteran complained of several ailments, none of which pertained to tinnitus or hearing generally. In June 2010, the Veteran was seen at a VA primary care clinic and did not convey any complaints of tinnitus to the clinician. The absence of tinnitus complaints during these health check-ups is a factor that may be considered along with the other evidence of record. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during the active military service, which resulted in any chronic or persistent disorder). The first post-service evidence of tinnitus is a March 2011 VA Form 21-4138 statement, in which the Veteran explained that he has experienced tinnitus in both ears ever since his exposure to hazardous noise in the military. In May 2011, the Veteran submitted to a VA audiological examination. The Veteran reported how he experienced excessive noise exposure while serving on the flightline with hearing protection. He gave an onset date of "at least 20 to 30 years ago." The examiner performed a physical evaluation of the Veteran's ears and ear canals and found no evidence of acoustic damage. The examiner also reviewed the Veteran's claims file and observed no complaints of tinnitus in service and hearing within normal limits at service entry and separation. In consideration of this evidence, the examiner opined that it is not at least as likely as not that the Veteran's tinnitus is related to military service. In light of the foregoing evidence, the Board finds that the Veteran's tinnitus is not etiologically related to active military service. First, the medical evidence of record does not establish a nexus. STRs are silent regarding any complaints or treatment for ringing in the ears during service. The separation examination shows a normal clinical evaluation of the Veteran's ears. The accompanying notes, while detailing other ailments that the Veteran suffered in service, do not include any mention of tinnitus. Moreover, the examiner noted that the Veteran denied any additional problems at that time. See Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). The May 2011 VA audiological examiner opined that the Veteran's tinnitus is not at least as likely as not that the Veteran's tinnitus is related to military service. The opinion is probative because it acknowledges the Veteran's in-service noise exposure and considers factors including the absence of both tinnitus complaints in service and any present damage to the ears or ear canals. As the only medical opinion on tinnitus etiology in the record, the opinion is afforded great weight. Further, the Board does not find the Veteran's account of experiencing tinnitus since service to be credible. Although he is competent to report experiencing tinnitus symptoms, the Veteran first reported tinnitus in 2011, over 25 years after leaving service and 20 to 30 years following its purported onset. Layno, 6 Vet. App. at 470. In addition, the Veteran did not report tinnitus or any other problems with his ears when being examined by primary care clinicians in 2008, 2009, and 2010. Here, the Board finds that the contemporaneous in-service reports by the Veteran and clinical findings, recent primary care visits showing no tinnitus symptomatology, and the absence of evidence of post-service complaints, findings, diagnosis, or treatment for many years after service are more probative than the Veteran's statements regarding tinnitus made pursuant to the recent claim for compensation benefits. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1999) (interest may affect the credibility of testimony) . Accordingly, the Board does not attribute any weight to the Veteran's account of experiencing tinnitus since service. In sum, the preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to the acoustic trauma sustained in service. As such, service connection for the disability is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). ORDER Service connection for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs