Citation Nr: 1331840 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-23 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an effective date earlier than February 26, 2009, for the grant of service connection for status post splenectomy residuals as a result of gunshot wound (non combat). 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. The issue of entitlement to service connection for bilateral hearing loss disability 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. FINDINGS OF FACT 1. An initial claim for compensation benefits, to include service connection for status post splenectomy residuals as a result of gunshot wound (non combat), was received on February 26, 2009. 2. Tinnitus was not manifest during service. Tinnitus is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 26, 2009, for the grant of service connection for status post splenectomy residuals as a result of gunshot wound (non combat) are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in March and June 2009 letters issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection herein decided, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records and VA treatment records and examination report. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Effective Date Applicable regulations provide generally that the effective date for a grant of benefits based on an original claim will generally be the date of receipt of the claim. 38 U.S.C.A. § 5110(a). An effective date prior to the date of receipt of the claim is permissible in some instances where the date of receipt was within one year of separation from service. 38 U.S.C.A. § 5110(b). Here, the Veteran separated from service on April 27, 1971, as reflected on his DD Form 214. He did not file a formal claim for disability compensation benefits until February 26, 2009, when a VA Form 21-526, Veterans Application for Compensation and/or Pension, was received. This was more than one year after separation. Further, the file reflects no communication from the Veteran prior to February 2009 which might be considered an informal claim for benefits. 38 C.F.R. § 3.155. The Veteran does not dispute that the February 2009 submission represents his initial claim for benefits. Essentially, the Veteran contends that he was unaware of his entitlement to VA benefits until he met with his service organization representative in conjunction with filing claims for service connection for the disabilities that are the subject of the current appeal. Under such circumstances, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Although the Veteran may have been unaware of his right to submit a claim for benefits earlier, this has no bearing on the issue. Effective dates are generally determined by the date of receipt of a claim and here, no exceptions to the general rule are applicable. February 26, 2009 represents the earliest possible date of receipt of a claim. The Board does not dispute that he had an in-service injury. The Veteran underwent splenectomy as a result of a gunshot wound during his period of service. Residual disability was present from 1970 to the receipt of the claim in 2009. However, the applicable law and regulations generally establish that the effective date is no earlier than the date of receipt of the claim. 38 U.S.C.A. § 5110(a). Although there are potential exceptions, here the claim was received more than one year after the date of separation. 38 U.S.C.A. § 5110(b). Based upon the facts of this case, the general rule contained in section 5110(a) is applicable. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran essentially asserts that his tinnitus onset was due to acoustic trauma sustained in service. The service treatment records contain no complaints or documentation of tinnitus. We also note that he does not assert that tinnitus started in service or that he had ongoing manifestations since service. In the report of June 2009 VA examination, the audiologist recorded the Veteran's complaint of constant tinnitus in both ears. In pertinent part, the Veteran reported that his tinnitus started approximately four to six years ago. He denied having tinnitus before that time. The Veteran reported his history of in-service noise exposure (torpedo retriever, forklift driver, machine shop) and history of post-service noise exposure (machine shop, steam plant, hydroelectric power plant and roof estimator). It was specifically noted that he hunted once per year without the use of ear protection. The audiologist concluded, after review of the medical records, taking the Veteran's history, and performing examination, that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by noise exposure in the service. The audiologist explained that by the Veteran's own admission he had only had tinnitus for approximately four to six years and specifically denied having tinnitus before that time. The audiologist concluded that tinnitus appeared to have a later onset and found that it was more logical to conclude that the Veteran's post-service occupational history of noise exposure was more detrimental than his in-service noise exposure. In this case, the evidence is against a link between the onset of post-service tinnitus and service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no credible evidence that suggests that there exists a medical relationship, or nexus, between the current tinnitus and the Veteran's active service. In the June 2009 report of VA examination, the audiologist explicitly opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by noise exposure in the service, explaining tinnitus appeared to have a later onset more likely related to post-service occupational noise exposure. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA audiologist (which was based on a review of the medical records, taking the Veteran's history, and performing examination). The only evidence of record supporting the Veteran's claim is his various general lay assertions. The Veteran is competent to assert that his tinnitus was due to acoustic trauma sustained in service (as this may be within the realm of common lay knowledge). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the Board acknowledges that a layperson, such as the Veteran, is competent to assert that he has ringing in ears, or tinnitus, and is also competent to report a ongoing symptoms. See Charles v. Principi, 16 Vet. App. 370 (2002)). Here, however, the Veteran makes no such assertion. At his June 2009 VA examination, the Veteran reported that his tinnitus began four to six years earlier and explicitly denied having tinnitus before that time. In this case, the Board finds the opinion of the VA examiner in the June 2008 report VA examination to be more probative than the unsubstantiated assertions of the Veteran. The VA audiologist is a medical professional who has reviewed the claims file, considered the reported history and performed physical examination. The audiologist used their expertise in reviewing the facts of this case and determined that the current tinnitus was unrelated to the Veteran's service. It is clear that the audiologist fully understood the basis for the Veteran's claims yet still determined, after reviewing the facts of the case, that the current tinnitus was related to causes other than the Veteran's service. The Veteran has not suggested that the examination, in this regard, was performed in an insufficient manner. Lastly, tinnitus is not an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309. Therefore, the provisions of 38 C.F.R. § 3.303(b) are not applicable. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for tinnitus must be denied. 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, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an effective date earlier than February 26, 2009, for the grant of service connection for status post splenectomy residuals as a result of gunshot wound (non combat) is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran was afforded a VA audio examination in June 2009. The audiologist acknowledged the Veteran's reported military noise exposure (torpedo retriever, forklift driver, machine shop) and also noted the Veteran's post-service noise exposure (machine shop, steam plant, hydroelectric power plant and roof estimator). The audiologist reported that the Veteran had been aware of his hearing loss for the last four to six years. The audiologist also reported that the Veteran recalled having decreased hearing after leaving the engine room in the service. The audiologist opined that the Veteran's hearing loss was less likely than not caused by noise exposure in the service based on the Veteran's own lay statements that he noticed hearing problems in the last four to six years. The audiologist concluded that the hearing loss appeared to have a later onset and it was more logical to conclude that the Veteran's occupational history of noise was more detrimental to the Veteran's hearing than his in-service noise exposure. With respect to the Veteran's claim for service connection for hearing loss, the Board finds the June 2009 examination inadequate. In this regard, the Board notes that the audiologist reports that the Veteran has been aware of hearing loss for the last four to six years. However, in the very next sentence the audiologist reports that the Veteran recalled having decreased hearing after leaving the engine room in service. Given this internal inconsistency, the audiologist's rationale is deficient. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also observes that the Veteran reports that his military noise exposure was without the use of hearing protection (hearing protection was not required or worn) and that his post-service occupational noise exposure was with the use of hearing protection (hearing protection was required and worn). The Board reiterates service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Given the inadequacy of the VA examination as noted above, remand is warranted to obtain a more thorough opinion regarding the etiology of the bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the bilateral hearing loss disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the audiologist. If the audiologist determines an examination is required, such an examination shall be provided. The audiologist must provide an opinion, in light of prior examination findings, the Veteran's credible lay assertions as to onset of hearing loss and the post-service evidence of record whether it is at least as likely as not (50 percent chance or greater) that the Veteran's current bilateral hearing loss disability onset due to acoustic trauma sustained during the Veteran's period of service. All opinions and conclusions expressed by the audiologist must be supported by a complete rationale. 2. After completing all indicated development, the claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs