Citation Nr: 1331013	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  13-04 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel







INTRODUCTION

The Veteran served on active duty from December 1973 to December 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed only as to the denial of service connection for tinnitus.

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 preponderance of the evidence is against finding that the Veteran's tinnitus is causally related to a disease, injury, or event in service.


CONCLUSION OF LAW

Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in November 2010, prior to the initial unfavorable adjudication in March 2011. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. See Dingess, 19 Vet. App. at 473. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service treatment records with the claims file. All other identified and available post-service treatment records have been obtained. As there are no other outstanding identified records, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a VA audiological examination in February 2011. The examiner considered the Veteran's contentions, but concluded that his tinnitus was not causally linked to his military service. The decision was based on review of the Veteran's service treatment records, an interview of the Veteran, and an audiological examination. Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision with respect to the Veteran's claim for service connection for tinnitus. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA provides a VA examination, it must ensure the examination is adequate). 

Since VA has obtained all relevant identified records and provided an adequate medical examination, the VA has satisfied its duty to assist in this case.

II. Service Connection

Generally, to establish direct service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 

For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id. at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence is a fact that the Board can consider and weigh against a Veteran's lay statements. Id.

The Veteran contends that he has tinnitus as a result of his military service. Specifically, the Veteran contends that the jet engine noise he was exposed to while working as a pneudraulic systems mechanic on the flight line caused his tinnitus.

First, there is sufficient evidence to indicate the Veteran has a current disability. The Veteran has consistently stated that he has tinnitus. While there are no objective medical findings to that effect, the Veteran is competent to diagnose himself with tinnitus because it is lay observable. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (2009); Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 309. There is nothing in the record that indicates his statements regarding a current disability are not credible, and therefore the Veteran's statements carry significant probative weight as to this element. The Board finds that the Veteran's lay statements establish the existence of a current disability, specifically tinnitus, for the purposes of service connection.

Second, there is sufficient evidence to indicate the presence of in-service incurrence. The Veteran's DD 214 shows that he served as a pneudraulic systems mechanic, and his lay statements and service treatment records indicate he worked on the flight line. The Veteran has stated that his tinnitus is the result of being exposed to jet engine noise working on the flight line. As the noise exposure the Veteran has described, namely jet engines, is consistent with the circumstances of his service, the in-service element of service connection has been met. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Finally, the preponderance of the evidence is against a finding that the Veteran's tinnitus is causally linked to his service. The Veteran underwent an audiological evaluation in connection with his claim in February 2011. While the examiner stated he did not review the entire claims file when formulating his opinion, the examiner did note that the Veteran provided copies of his service treatment records, which were reviewed. During the examination the Veteran stated that he has had tinnitus since shortly after service. The examiner conducted a full audiological examination.

Based on the Veteran's statements, service treatment records, and examination results, the examiner opined that his tinnitus was not related to acoustic trauma experienced in service. The examiner relied on the fact that the Veteran's audiological examination showed an absence of high frequency cochlear damage, indicating a lack of acoustic trauma. The opinion was offered by a competent medical professional who relied on accurate facts, applied accepted medical principles to those facts, and provided a sufficient supporting rationale. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. No other medical evidence has been submitted showing that the Veteran's tinnitus is causally related to his service. As a result, the VA opinion is the only medical evidence of record and is highly probative of the existence of a nexus.

The Veteran has provided lay statements indicating that he has had tinnitus since service, which he is competent to report. However, the Veteran's service treatment records indicate the Veteran affirmatively denied any hearing loss or other hearing problems in his separation examination dated October 1977. This conflicts with the Veteran's statement in his September 2010 claim that his tinnitus began in 1974. In addition, during his VA audiological examination the Veteran stated that his tinnitus began shortly after service (i.e. after December 1977), as opposed to during service. Although such inconsistencies may be due to the passage of time, their presence undermines the credibility of the Veteran's statements. 

Further, there are also no medical records showing that the Veteran has sought treatment for or complained of tinnitus at any point during the period from his separation from service in December 1977 to the filing of his claim in September 2010. Such a lack of contemporaneous evidence and long periods without complaint can be considered in determining the credibility of lay statements. See id.; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Here, the lack of contemporaneous medical records and absence of complaints of tinnitus during the 33 years since separation support a finding that the Veteran's statements are not credible. Due to the inconsistency of the Veteran's statements and the lack of medical evidence and complaints, the Board finds the Veteran's statements are not credible with respect to the presence of a nexus. As the statements are not credible, they are assigned no probative weight. 

As the Veteran's lay statements concerning a nexus have no probative weight, the only competent, credible and probative evidence of record on that issue is the VA audiological examination. As such, the preponderance of the evidence is against a finding that there is a nexus between the Veteran's tinnitus and his service.

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 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. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for tinnitus is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs