Citation Nr: 1329302 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-06 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from August 1965 to August 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned at personal hearing held via videoconference from the RO in November 2010. Unfortunately the video portion of the transmission was not functioning; however, the Veteran opted to proceed with audio only, and waived any objection to the form of the hearing. A transcript of the proceeding is of record. At a conference held in connection with the November 2010 Board hearing, and during the hearing itself, the undersigned Veterans Law Judge discussed the issue on appeal with the appellant and his representative. 38 C.F.R. § 3.103 (2011); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). In June 2011 and March 2013, the Board remanded the appeal for additional development of the record as to the issues of entitlement to service connection for tinnitus and hepatitis. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. The issue of entitlement o service connection for hepatitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative evidence does not show that the currently diagnosed tinnitus was incurred in or aggravated by service. CONCLUSION OF LAW Service connection for tinnitus is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the claim of service connection for tinnitus, an initial duty-to-assist letter was sent to the Veteran in August 2005, prior to the initial adjudication in January 2006. The letter informed the Veteran of what evidence was necessary to substantiate a claim for service connection, and the letter also informed the Veteran of whether VA or the Veteran was responsible for obtaining certain evidence. The initial August 2005 letter did not specifically notify the Veteran about the assignment of disability ratings and effective dates for all grants of service connection. However, the subsequent letter sent in May 2008 did notify the Veteran about the assignment of disability ratings and effective dates for all grants of service connection. The case was subsequently remanded, and the RO reajudicated the case by way of a supplemental statement of the case in September 2012. Thus, any timing errors with regard to notice were subsequently corrected. Meanwhile, after the case was remanded in March 2013, the RO sent an additional letter to the Veteran requesting authorization to obtain any private treatment records identified by the Veteran with respect to his claims. The letter also requested the Veteran to provide information regarding any VA treatment facility that he received treatment pertinent to his claims. Finally, the letter notified him that VA examinations were being scheduled on his behalf and advised the Veteran about the consequences of his failure to report to those examinations. This was accomplished in compliance with the Board's March 2013 remand directives. The RO subsequently obtained VA records identified by the Veteran and there is no indication that any records identified by him are outstanding. Also, per the March 2013 remand directives, a series of VA examinations were held in April 2013. The April 2013 examination is adequate for the purpose for which it was conducted. As such, there has been compliance with the March 2013 remand directives and no further action is necessary in that regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Service treatment records have been associated with the claims folder. In addition, VA afforded the Veteran physical examinations, obtained medical opinions, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Rules and Regulaions Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay 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). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony 'falls short' in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. III. Analysis The Veteran seeks service connection for tinnitus as a result of his active service. He essentially contends that he was exposed to noise while on active duty and that any current tinnitus is attributable to that acoustic trauma. The Veteran's service treatment records (STRs) show that his hearing was normal at the time of entry into service based on audiometric findings in August 1965. The Veteran's STRs do not contain a separation examination, and the Veteran testified at his video conference hearing in November 2010 that he was never afforded the opportunity to be examined upon separation from service. A September 2010 VA audiology consult notes that the Veteran complained of constant tinnitus in both ears and reported military and civilian noise exposure. The Veteran denied middle ear problems, surgeries or head injury, but complained of 2 to 3 episodes of vertigo a month for the last 3 to 4 years. During a December 2010 VA follow-up, the Veteran reported several years of tinnitus that is a constant "ringing", non- pulsutile. During a September 2011 VA examination, the Veteran reported he has tinnitus that comes and goes and sounds like the roaring in a seashell. The examiner determined that tinnitus was not clinically present and is less likely as not caused by or a result of acoustic trauma in service. The Veteran's report of infrequent, brief tinnitus is not considered clinically significant and is normal. The opinion is based on Veteran interview, evidence reviewed and clinical expertise. There is also no evidence of preexisting hearing loss or current hearing loss and no evidence of acoustic trauma in service. During an April 2013 VA examination, the Veteran reported tinnitus that began about 10 years ago. It is bilateral and periodic, but he says that it is there most of the time. The examiner found that tinnitus is less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran consistently sustains normal hearing bilaterally and he estimated the onset of tinnitus well past his separation from military service; therefore, it is the opinion of the examiner that any current complaint of tinnitus is not due to or caused by noise exposure incurred during military service. The Board finds the weight of the evidence is against service connection for tinnitus. STRs show no in-service diagnosis or complaints. There is no documented evidence of tinnitus complaints until 2010, after the Veteran filed his claim for service-connection. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an 'absolute bar' to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ( 'Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms'). A negative inference may be drawn from the absence of complaints or treatment for an extended period, though. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the Veteran sincerely believes that his tinnitus is due to active service, his opinion in this regard is not probative because he is not competent to provide such a nexus opinion. Although the Veteran is competent to report his observable symptoms associated with tinnitus, he is not competent to opine as to the etiology of the current tinnitus in this case, as this is the type of medical question that is beyond the capability of a lay person's observation and thus requires medical expertise. He is not observing and reporting a cause and effect relationship, but is instead considering factors and formulating a conclusion. The two VA medical examiners' opinions that the current tinnitus is not caused by in-service noise exposure are entitled to great probative weight as they are based on a review of the history and a physical examination, and as a rationale was provided for the opinions. The doctrine of reasonable doubt has been considered, but the record does not provide an approximate balance of negative and positive evidence on the merits. No reasonable basis has been identified for granting service connection for obstructive sleep apnea. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is denied. REMAND The only issue left on appeal is entitlement to service connection for hepatitis. With regard to the claim of service connection for hepatitis, the Veteran has alleged that beginning in November 2004, he has been told that he has both hepatitis A and hepatitis B. He reported at his hearing, and to VA doctors, that he initially misunderstood his diagnosis and in fact has not been diagnosed with hepatitis C. VA treatment records contain a November 2004 Agent Orange registry examination which indicates a November 2004 serology was positive for Hepatitis A. In August 2005, VA asked the Veteran to identify his risk factors for hepatitis; he did not respond directly to the inquiry, but has stated that he believes he contracted the infection from a bite he sustained in a fight aboard ship. Records confirm the occurrence of the bite. At the November 2010 Board hearing, the Veteran denied use of drugs and stated he had not received any transfusions until after he had been diagnosed with hepatitis. The Board has twice remanded the matter for an adequate examination and medical opinion. Unfortunately, the most recent April 2013 examination remains inadequate for adjudication. Although the examiner indicated that the claims file was reviewed, the examiner noted that the Veteran does not now nor has he ever been diagnosed with a liver condition. This statement is incorrect given the November 2004 diagnosis of Hepatitis A. Furthermore, the examiner noted that the Veteran had no known risk factors. This is also incorrect as the Veteran has asserted multiple times that his risk factor includes a bite in service. This opinion fails to consider all competent evidence and information of record. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records from the medical center in San Antonio, Texas, and all associated clinics, as well as any other VA facility identified by Veteran or in the record. 2. After completion of the above, schedule the Veteran for a VA Liver, Gall Bladder, and Pancreas examination. The claims file must be reviewed by the examiner in conjunction with the examination. If necessary, the examiner should conduct updated testing to identify the presence of any strain of hepatitis. The examiner must take from the Veteran a history sufficient to identify potential risk factors for hepatitis, to include the documented in-service bite. The examiner must then opine as to whether it is at least as likely as not that hepatitis is related service, in light of the identified risk factors, to include the reported bite wound. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the record assembled for appellate review. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the May 2013 SSOC, and provides an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs