Citation Nr: 1331940 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-15 935 ) 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 J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from December 1958 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. There is an April 17, 2013 addendum opinion that was not referenced in the May 2013 Statement of the Case (SOC). The Board finds that the April 17, 2013 document was in the file and was considered at the time of the SOC because the SOC references the April 29, 2013 addendum opinion that itself discussed the April 17, 2013 addendum opinion. Therefore it was in the file and can be presumed to have been considered based on the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). Additionally, even if not considered by the RO in the SOC, the error is not prejudicial to the Veteran because the opinion was against the claim, and any failure to consider it did not prevent the claim from being granted. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDING OF FACT The most persuasive and credible evidence of record shows that the Veteran's tinnitus is not causally or etiologically related to an in-service event, injury, or disease and did not have its onset in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b), 7105(e) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the United States Court of Appeals for Veteran's Claims Court (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In a letter dated June 2011, VA satisfied its duty to notify the Veteran. Specifically, the RO notified the Veteran of the information and evidence necessary to substantiate the claim; information and evidence that the VA would seek to provide; and information and evidence that the Veteran was expected to provide. The June 2011 letter also notified the Veteran about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran. The Veteran's service treatment records and all available post-service treatment records are of record. VA provided the Veteran with a medical examination in March 2012, and three VA addendum opinions were obtained in April 2013. The March 2012 examination report reflects that the examiner reviewed the Veteran's claim file, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. In rendering the addendum opinions, the examiners reviewed the Veteran's claims file, medical history, and prior VA opinions, and rendered opinions consistent with the evidence of record. The Board notes that the Veteran's representative asserted in the May 2012 notice of disagreement, that the March 2012 VA opinion was inadequate because the examiner did not answer the question of whether the Veteran's tinnitus was a symptom associated with his hearing loss. The Board finds that the April 29, 2013, addendum opinion, specifically addressed and answered that question. Thus, the Board finds that the VA examination report and addendum opinions, taken together, are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claim, de novo. Tinnitus The Veteran claims that his current diagnosis of recurrent tinnitus is related to his period of active service. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. § 3.303(a) (2013). Service connection is also warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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). Competency is a legal concept in determining whether lay or medical evidence may be considered. In other words, competency addresses whether the evidence is admissible as distinguished from weight and credibility, which is a factual determination going to the probative value of the evidence; that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (2013); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (noting that lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 (2013). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical evidence shows that the Veteran has a current diagnosis of tinnitus. The Veteran's service treatment records are negative for any notation, complaint, or diagnosis of tinnitus during active service. The Veteran's December 1962 separation examination report is negative for any mention of tinnitus. However, the Veteran's DD Form 214 shows that his specialty was as an Aircraft Engine Mechanic, which is an occupation traditionally associated with a high probability of in-service noise exposure. See VBA Fast Letter 10-35 (September 2010). Following service, the Veteran's first complaints regarding tinnitus were documented in a December 2010 VA audiology consult report, which reflected that he reported that he noticed tinnitus two years before. The Veteran was provided a VA examination in March 2012, and three addendum opinions were obtained in April 2013. At the March 2012 VA examination, the Veteran reported that his tinnitus began in 2000, and that his tinnitus was bilateral and constant. The examiner noted that the Veteran served as an aircraft mechanic in the United States Navy and that he reported repeated exposure to jet engine noise. The examiner also noted that the Veteran reported a significant history of pre-service and post-service occupational and recreational noise exposure. It was noted that prior to active service, the Veteran used an open cab tractor to haul hay, and performed roadwork and brush cutting for approximately six months. The Veteran reported that after separation from service, he worked at a power plant in the coal pile on the shaker; used a jackhammer for approximately six months; worked as an operator and packer at an ammunitions plant for three and four years respectively; and worked as a sheet metal worker for 26 years. The Veteran reported that he did not use hearing protection in any of his post-service occupations. Additionally, the Veteran reported recreational noise exposure while hunting and using motorcycles and chainsaws. The March 2012 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran was unable to correlate the onset of his tinnitus to a particular event during service and that it did not begin until approximately 40 years after active service. The examiner also noted that there was no evidence of tinnitus in the Veteran's service treatment records and that he could not rule out post-service noise exposure as having contributed to the onset of the Veteran's tinnitus. In the April 4, 2013, addendum opinion, the same VA examiner noted that if the tinnitus was related to service the onset should have been correlated or connected to the Veteran's time in service. The examiner again noted that the Veteran could not "time lock" the onset of his tinnitus to his time in service. The examiner noted that the Veteran did not report tinnitus until 40 years after service, which was after much further noise exposure in the Veteran's civilian career. In the April 17, 2013, addendum opinion, the VA examiner again opined that the Veteran's tinnitus was less likely than not caused by or related to his acoustic trauma in service. The examiner stated that the Veteran's report of delayed onset tinnitus after service was inconsistent with the examiner's research regarding noise-induced tinnitus. The examiner noted that research studies have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. It does not have a delayed onset nor is it progressive or cumulative. The examiner also stated that it usually takes many incidents of temporary noise-induced hearing loss and tinnitus before it becomes permanent. In the April 29, 2013, addendum opinion, a different examiner stated that after reviewing the claims file and all the prior medical opinions, it was his opinion that it was less likely than not that the Veteran's tinnitus was caused by acoustic trauma during active service. The examiner also opined that the Veteran's tinnitus was not a symptom of his service-connected bilateral hearing loss. He stated that his opinion was affirmed by the April 17, 2013, addendum report, which noted there was no evidence of tinnitus in the Veteran's service treatment records. The examiner noted that tinnitus has many different etiologies other than acoustic trauma. The examiner also noted that the delayed onset of tinnitus militate against it's being a symptom of his hearing loss. In adjudicating the claim below, the Board has reviewed all of the evidence of record. The Board finds that the evidence weighs against granting service connection. After reviewing all the evidence, the Board finds that the most persuasive evidence weighs against granting service connection for tinnitus. Regarding the etiology of the Veteran's tinnitus, the Board finds that the opinion and addendum opinions by the VA examiners are the most persuasive evidence. The opinions were provided after reviewing the entire claims file including the Veteran's statements regarding his in-service and post-service noise exposure. Both examiners provided negative nexus opinions and the rationales for the examiners' opinions were consistent. As the examiners' opinions followed an extensive examination of the Veteran and/or the Veteran's claims file, as well as consideration of reported medical history, the opinions are accorded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes the Veteran's belief that his tinnitus is related to his period of active service, to include his in-service noise exposure. The Board acknowledges that the Veteran is competent to report his symptoms and even diagnose tinnitus because his knowledge of his symptoms comes to him through his senses and is not a complex medical question. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that Veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). However, the Board notes that the Veteran is a poor historian regarding the onset of his tinnitus. During the December 2010 VA audiology consultation, he reported that he first noticed tinnitus two years before. Subsequently, at his March 2012 VA examination the Veteran reported that his tinnitus began in 2000. The lack of consistency in the Veteran's statements raises questions about the reliability of his recollections regarding the onset of his tinnitus. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board can consider bias in lay evidence, conflicting statements of the Veteran, and the significant time delay between the affiants' observations and the date on which the statements were provided in weighing credibility). In any event, at no point has the Veteran claimed that he experienced tinnitus in service or consistently ever since service. The earliest onset he has claimed is in 2000 which is 38 years after discharge. While the Veteran is competent to report on when he first experienced ringing in his ears, the Board finds that he is not competent to provide an opinion regarding the etiology of his tinnitus. Where, as here, the determinative question involves a nexus or causation, and a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159 (2013). Nothing in the record suggests that the Veteran possesses appropriate training, experience, or expertise to provide a medical opinion concerning his tinnitus. As noted in the April 29, 2013, addendum opinion, there are many causes for tinnitus other than acoustic trauma. Additionally, given the lapse in time between the Veteran's in-service noise exposure, the total absence of evidence of tinnitus until approximately 40 years after service, and the Veteran's 34 plus years of pre- and post-service occupational noise exposure, the Board finds that an opinion as to an association between this Veteran's tinnitus and service is rationally beyond the Veteran's lay capacity. His statements are not competent medical evidence on the question of causation and are of no probative weight. Even if the Veteran was competent to render such an opinion as to the etiology of his tinnitus, the Board finds that the VA examiners' opinions are more probative. As noted above, the VA opinions were provided by two unbiased and skilled professionals, the opinions included detailed rationales, and are uncontroverted by any probative medical evidence. In regards to the etiology of the Veteran's tinnitus, the Board also notes that the Veteran's representative cited the Merck Manual of Diagnosis and Therapy for the proposition that tinnitus usually accompanies noise induced hearing loss. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (2013) (noting that competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Similarly, medical treatise evidence could "discuss [] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Mattern v. West, 12 Vet. App. 222, 229 (1999); Sacks v. West, 11 Vet. App. 314, 317 (1998), Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). However, the treatise evidence cited by the Veteran's representative is general in nature and does not contain any information or analysis specific to the Veteran's case, including his post-service noise exposure and the length of time between his active duty and reported onset of his tinnitus. As such, the treatise evidence cited by the Veteran is afforded little, if any, probative value. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical evidence that is speculative, general, or inconclusive in nature cannot support a claim). The record does not contain competent medical evidence that suggests that the Veteran's tinnitus is related to service. On the contrary, the VA examiners maintain that the disorder is not related to service, and the record contains no probative medical evidence to the contrary. Consequently, the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, 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 a claim, in which case, the claim is denied.). As the weight of the evidence is decidedly against the Veteran's claim, service connection for tinnitus must be denied, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013). ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs