Citation Nr: 1330069 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 99-17 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for tinnitus to include as a residual of head trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The issue to reopen service connection for a low back disability and service connection for residuals of rib fracture have been raised by the record in June 2013, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Veteran served on active duty from December 1968 to December 1970. This matter initially came before the Board of Veterans' Appeals (Board) from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In that decision, the RO denied entitlement to service connection for residuals of head trauma, including headaches and tinnitus, and a low back disorder. The Veteran and his spouse presented testimony on a hearing in March 2001 before a Veterans Law Judge (VLJ) sitting at the Boston, Massachusetts RO. The transcript is of record. In July 2001 and November 2005, the Board remanded the case to the RO for further development. The Veteran was afforded another hearing in April 2006, this time before the undersigned Veterans Law Judge, because the former VLJ left the Board. A transcript of that hearing, at which the Veteran and his spouse testified, is also of record. In a July 2006 decision, the Board denied entitlement to service connection for residuals of head trauma, including headaches and tinnitus, and a low back disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2008 memorandum decision, the Court affirmed the portion of the July 2006 decision denying service connection for a low back disorder; this matter is no longer for appellate consideration. The Court vacated the decision denying service connection for residuals of head trauma, and remanded the matter to the Board for development consistent with its decision. In an Order dated in October 2008, the Court determined that the Veteran's motion for reconsideration of the July 2006 Board decision was untimely. The Board remanded the claim to the RO, via the Appeals Management Center (AMC) in October 2009. In a June 2011 decision, the Board bifurcated the claim into separate claims for entitlement to service connection for headaches as a residual of head trauma and entitlement to service connection for tinnitus as a residual of head trauma. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). The Board denied the former claim and remanded the latter. In March 2012, the Board again remanded the claim for further development and in April 2013 obtained an opinion from the Veterans Health Administration (VHA). Subsequent to the April 2013 VHA opinion, the Veteran's representative submitted a brief in July 2013 providing further clarification of the Veteran's contentions. The Veteran also submitted additional statements and medical records. However, he did not respond to the Board's June 2013 letter asking him whether he would waive initial RO review of the additionally submitted evidence. Nevertheless, the evidence submitted subsequent to the October 2012 Supplemental Statement of the Case (SSOC) is either not pertinent to the issue on appeal or is cumulative or duplicative of the evidence of record at the time of the October 2012 SSOC, and thus a waiver of initial RO consideration is not needed. See 38 C.F.R. § 20.1304. The issue is now ready to be addressed on the merits. Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. FINDING OF FACT The Veteran's tinnitus became manifest years after service and is not otherwise related to service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication and post-adjudication VCAA notice by letters dated in March 2004 and in March 2006. The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. To the extent that the VCAA notice pertaining to degree of disability and effective date came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim of service connection was readjudicated as evidenced by the SSOC dated in January 2012 and in October 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, a copy of the hearing transcripts, and lay statements have been associated with the record. In the August 2008 memorandum decision, the Court cited as the reason for remand, the Board's failure to discuss or acknowledge a service treatment record that referred to multiple abrasions to the left temporomandibular area and right frontal temporal area, all superficial. Subsequently, the Board obtained medical opinions in December 2009, June 2011, December 2011, January 2012, and May 2012, that addressed the relationship between the Veteran's inservice trauma and his current tinnitus. Most recently, a thorough and fully adequate VHA opinion was obtained in April whereby the VHA examiner reviewed the Veteran's claims file and provided a detailed opinion regarding the relationship between the in-service head injury and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not reported to VA that he is in receipt of benefits from the Social Security Administration (SSA). In March 2001, he testified that he applied for SSA benefits and his claim was denied. In June 2004 he again clarified that he was not receiving SSA benefits. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the Veteran in obtaining the identified records. In this instance, the Veteran himself did not identify any SSA records that would be relevant to his claim. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to the claim. In the September 2008 memorandum decision, the Court noted that the Veteran asserted that upon separation from service he filled out "Standard Form 89", describing his head injury, which was previously in the file but was currently missing along with some of his service treatment records. However, the Court found that VA requested and received the Veteran's service treatment records and that "(t)here is nothing in the record to indicate that VA was unable to obtain any of Mr. [redacted]'s service medical records and the Court will presume that VA properly carried out its duty 'in the absence of clear evidence to the contrary'". In April 2013 and in June 2013, the Veteran again repeated that there were missing service records and that some may have been destroyed by fire. The claims folder includes the Veteran's service treatment records and there is no indication that any records were destroyed by fire. The Board reiterates that the Court has determined that the record shows that VA fulfilled its duty to assist and found that the file does not show that VA failed to obtain missing service records. Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained. During the Board hearing, the undersigned discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with the VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The Veteran in statements and testimony contends that during service while he was on military police duty, an inmate threw him against a wall and he absorbed the impact with his back and the back of his head. In a brief dated in July 2013, the Veteran's representative stated that the Veteran contends that at the time of his in-service assault there were more serious concerns than tinnitus. The representative further stated the following: (h)e argues that he does endorse an onset of tinnitus at the time of the insult, albeit his formal complaint was lodged many years later. The question is not when the tinnitus began, but is it related to the claimed insulting event of active duty service? The Veteran is convinced his tinnitus is related to the events of active duty military service. The record reflects an in service insult which could precipitate the onset of tinnitus; and the Veteran has offered testimony providing a nexus between his in service event and his currently diagnosed tinnitus." Service treatment records show that an entry dated in November 1969 indicates "trauma" to the frontal temporal area with apparently superficial abrasions. The record shows that there was no neurological impairment. In November 1969 a skull X-ray report was negative for any abnormalities. The Veteran's October 1970 separation examination was normal as to findings regarding the head, neck, and ears. On the accompanying Report of Medical History the Veteran checked the box indicating that he had "Ear, Nose or Throat Trouble". He did not elaborate on this, however on the preinduction Report of Medical History in October 1968 he checked the same box indicating that he had "Ear, Nose or Throat Trouble", which the examiner recorded as nose bleeds. The Veteran reported that the onset of tinnitus was in 1988. A VA neurology consult in May 1993, as well as other records in the file, show the Veteran reported that tinnitus began in 1988. On VA examination in 1996, the Veteran reported that he experienced a buzzing sound in his ears that began four or five years previously. On a VA audiology examination in December 2009, the Veteran reported a constant buzzing tinnitus that he had for 18 years, exact onset was unknown. It was noted that the Veteran had a positive history of military head trauma with brain swelling. The examiner opined that the Veteran's tinnitus was likely related to his high-frequency sensorineural hearing loss, as onset was reported 18 years before, which was 21 years after he was discharged from service. In an addendum opinion in June 2011, the audiologist stated that "(t)innitus is less likely than not related to military noise exposure given that the onset of tinnitus was reported 18 years ago which was 21 years after he was discharged from the U.S. Army. Additionally there was no medical evidence of threshold shift or hearing loss at time of discharge from the military." In September 2011 and in March 2012, the audiologist stated that it was beyond her scope to render an opinion as to whether tinnitus was related to the Veteran's head trauma and the opinion should be deferred to a specialist in head injuries. In December 2011, the Veteran was afforded a VA otolaryngology consult with an otolaryngologist. The examiner noted that the Veteran had tinnitus since 1988, which was slowly worsening, and a head injury in 1970. The examiner was of the opinion that tinnitus is most likely secondary to progressive hearing loss. In an addendum in January 2012, the examiner stated that he reviewed the claims folder and his impression was based upon the timing of the onset of symptoms, medical history, and objective testing. He concluded that tinnitus is at least as likely as not (50/50 probability) caused by or a result of hearing loss; tinnitus is less likely as not (less than 50/50 probability) caused by or a result of the head injury; the Veteran's hearing loss is at least as likely as not (50/50 probability) caused by or a result of presbycusis; the hearing loss is less likely as not (less than 50/50 probability) caused by or a result of the head injury or military noise exposure. On the VA examination for the brain and spinal cord in May 2012, the examiner stated that the Veteran had a traumatic brain injury (TBI) in 1969 and that the residual attributed to that injury was concussion with no loss of consciousness. The examiner indicated that the Veteran did not have residuals of TBI, to include tinnitus. A VHA opinion was obtained in April 2013. The examiner, a staff surgeon at the otolaryngology department at the VA Palo Alto Health Care System, explained that "(i)f tinnitus is associated with noise exposure or head trauma it would be expected to occur proximally to the insulting event and not of such delayed onset as claimed by the patient." The VHA examiner noted that as for hearing acuity, on entrance examination in October 1968 the Veteran had 0 decibels at the tested frequencies, with the exception of 15 decibels at 4000 hertz and on the October 1970 separation examination he had 5 decibels at all frequencies tested. He concluded that on separation examination in October 1970 the Veteran had normal hearing which was consistent with the induction examination in October 1968. The examiner further noted that the Veteran reported that the onset of tinnitus was twenty years after discharge from service and that his hearing loss documented in December 2009 might be attributed to the non-service connected civilian industrial noise exposure and/or presbycusis. The examiner concluded that "(t)innitus is less likely than not related to military service given that the onset of tinnitus was 21 years after he was discharged from the U.S. Army. Additionally, there was no medical evidence of threshold shift or hearing loss at the time of discharge from the military." The Board finds this opinion to be significantly probative as the examiner carefully reviewed the Veteran's longitudinal medical history, considered the Veteran's reported lay history and commented with an appropriate rationale as to why tinnitus was not a residual of the Veteran's head injury in service. This opinion is consistent with the other medical opinions of record. The fact that the onset may have been 18 years after service does not lessen the reasoning of the opinion. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Further, in the case of tinnitus it is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002). While the Veteran is competent to state that he has tinnitus and his statements that he currently has tinnitus are credible, his statements regarding the onset of tinnitus during service are not credible. The Board notes that it 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). In the instant case, the Veteran's statements regarding the onset of tinnitus are not credible because his reports regarding the onset of tinnitus have been inconsistent. As presented above, the Veteran during his medical examinations dated in 1993, 1996, and in 2009 reported that his tinnitus began in 1988. Most recently, in July 2013 the Veteran through his representative reported that he had tinnitus at the time of his in-service 1969 head injury. The Board finds that the statements the Veteran made to medical examiners are more credible than what he reported through his representative in 2013. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that a pecuniary interest may be found to affect the credibility of testimony.) As for the Veteran's lay opinion that his current tinnitus is related to his November 1969 head injury in service, his opinion is outweighed by the April 2013 VHA opinion. This opinion is highly probative as it reflected the VA examiners' specialized knowledge, training, and experience as to the etiology of the Veteran's tinnitus, as well as consideration of all relevant lay and medical evidence of record. To the extent the Veteran asserts that his current tinnitus was caused by the inservice head injury, the etiology of the disorder is manifest approximately 18 years after service is a complex medical matter beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Whether the Veteran has tinnitus that was caused by the inservice head injury requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion. In this regard, a medical professional has greater skill. The Veteran's tinnitus is not included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a), therefore consideration of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regardless, even if a chronic disease (organic disease of the nervous system) under 38 U.S.C.A. § 1101, tinnitus was not noted, manifest or identified during service. Furthermore, there was no characteristic manifestation of tinnitus during service. As such, section 38 C.F.R. § 3.303(b) does not assist the appellant. In sum, the most probative evidence establishes a remote post service onset of tinnitus that is unrelated to service, to include the head trauma. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of service connection for tinnitus, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Service connection for tinnitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs