Citation Nr: 1330743	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  10-11 066	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a bilateral knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse



ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from January 1962 to July 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In October 2010, the Veteran testified at a personal hearing at the RO before a Decision Review Officer (DRO).

The issues of service connection for bilateral hearing loss and for bilateral knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Tinnitus is not attributable to service.  


CONCLUSION OF LAW

Tinnitus was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board finds no error in notice to the Veteran, because he has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  A VCAA letter was sent in October 2008 which indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letter also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.

The Veteran has been afforded a hearing before an RO Decision Review Officer (DRO).  Although the DRO did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim, the DRO asked specific questions directed at identifying whether the Veteran met t he criteria necessary to establish service connection.  The DRO also sought to identify any pertinent evidence not currently associated with the claim.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing.  Through his testimony, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  

Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran indicated that private medical records are no longer available for review from several physicians he named in November 2008 correspondence.  There is no indication that any additional evidence, relevant to these claims, is available and not part of the record.  The Veteran also was provided a VA compensation examination, including for a medical nexus opinion concerning the etiology of the claimed tinnitus disorder and any potential relationship with military service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The medical nexus opinion obtained is factually informed, medically competent and responsive to the determinative issue of causation. Additional examinations and opinions are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated).  The examination is adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The VA examination report is thorough and supported by the record.  The records taken as a whole satisfy 38 C.F.R. § 3.326 and the claim is ready for appellate review. Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Service Connection for Tinnitus

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. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  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 that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Medical evidence is not always 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).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  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" such as actual treatment records).  The Veteran is competent to report the Veteran can observe and feel through the senses.  See Layno.  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).

Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, 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). 

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 338 C.F.R. § 3.102.

A review of the STRs reveals no complaints, findings, treatment, or diagnosis of tinnitus.

The Veteran claims that he was exposed to acoustic trauma from large guns while serving aboard ship during his military service.  He asserts that after he would load the guns, he would sometimes have ringing in his ears and that this problem has persisted since service.  His wife has stated that the Veteran told her about the ringing in his ears which began during service.  The Veteran is competent to state that he experienced tinnitus during service, after service, and currently.  Likewise, his wife is competent to report what he told her and what she observed.  

However, on the Veteran's separation examination the physical examination yielded only normal findings.  There was no mention of any ringing in the ears.  As such, his current contentions do not resolve this inconsistency.  Therefore, VA afforded the Veteran a VA audiological examination to address the etiology of the Veteran's tinnitus.

During the April 2009 VA audiological examination, the Veteran reported being exposed to acoustic trauma during service and described the noise exposure.  The examiner noted that there were no complaints of tinnitus documented during service.  The examiner indicated that the Veteran currently had recurrent tinnitus which occurred 3-4 times per week and lasted for minutes each time.  The diagnosis was recurrent bilateral tinnitus.  The examiner reported that she could not resolve if the Veteran's tinnitus was related to service.  An addendum opinion was obtained in February 2010 from another VA examiner.  She opined that the Veteran's occasional tinnitus as described by the Veteran was not considered pathologic since occasional tinnitus occurs in the normal population without hearing loss.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez.  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon.  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl.

The Veteran underwent a full examination and his statements were recorded and considered by the examiners.  While the first examiner did not provide a definitive opinion, the second examiner indicated that the Veteran's type of tinnitus was not service-related and she provided a rationale.  In addition, while the Board has considered the lay statements of the Veteran and his wife, the Board has also considered the medical evidence of record, including the STRS which not only do not record any complaints of tinnitus, but which also reported normal physical findings at separation.  

While the separation examiner documented visual abnormalities which are susceptible of lay competence, there is no mention of ringing in the ears. The VA examiner's opinion is generally consistent with the record and was in fact also based on subjective statements made by the Veteran.  Her opinion therefore meets the directives of Nieves-Rodriguez, is probative in nature, and is more probative that the lay evidence since that evidence did not adequately explain the separation examination findings or the medical aspects of the Veteran's type of tinnitus.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis.  See Cohen v. Brown, 10 Vet. App. 128, 137 (1997).  Accordingly, service connection for tinnitus is not warranted.  
ORDER

Service connection for tinnitus is denied.  


REMAND

The remaining claims are REMANDED to the AMC for the following action:

1.  Obtain an addendum as to the issue of service connection for bilateral hearing loss from the examiner who provided the February 2010 addendum.  The record should be reviewed, including the entrance examination for service, the separation examination for service, the current audiological findings, and the lay evidence which discusses inservice acoustic trauma and hearing loss since service.  The examiner should refer to the CONVERTED FINDINGS TO ISO-ANSI audiometric data.  IF THE EXAMINER IS NO LONGER AVAILABLE, OBTAIN THE ADDENDUM FROM A SIMILARLY QUALLIFIED EXAMINER, AND CONDUCT ANY CLINICAL STUDIES. The following inquires should be answered:

(a) Is there evidence that the Veteran's preexisting bilateral hearing loss disorder increased in severity (worsened) in service;

(b) If the preexisting bilateral hearing loss disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in service was due to the natural progress of the bilateral hearing loss disorder; please identify with specificity any evidence that supports this finding;

The examiner MUST PROVIDE A COMPLETE EXPLANATION for all opinions expressed and conclusions reached.  

THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. 

THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 

2.  The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry.

3.  Determine if the Veteran has withdrawn the issue of service connection for bilateral knee disability or wishes to withdraw that issue.  If so, this should be documented in writing.

4.  The AMC should then readjudicate any claim remaining on appeal in light of all of the evidence of record.  If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.  

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs