Citation Nr: 1331941 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-12 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to June 1966 and from July 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in May 2012, a statement of the case was issued in March 2013, and a substantive appeal was received in April 2013. Although the issue of hearing loss was included in the notice of disagreement, the Veteran's substantive appeal limited his appeal to the issue of service connection for tinnitus. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's current tinnitus disability is not causally related to active service. CONCLUSION OF LAW Tinnitus disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO provided VCAA notice to the Veteran in an August 2011 letter prior to an April 2012 rating decision. This letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied. The notice requirements must also 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 v. Nicholson, 19 Vet. App. 473 (2006). The August 2011 letter provided notice of the types of information needed to substantiate the Veteran's claim. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). Furthermore, the duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). The Veteran's service treatment records and VA medical records have been obtained. Moreover, the Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim. VA provided an adequate audiological examination in February 2012, as an opinion was rendered with adequate rationale expressed. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Laws and Regulations The Veteran claims his current tinnitus is related to his active duty service, and therefore seeks entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno, supra. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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 lay person); Layno, 6 Vet. App. at 469-71 (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, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 310 ("[T]he Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms."). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of 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). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Factual Background and Analysis The Veteran filed a claim for VA compensation based on disorders other than tinnitus in August 1974. He filed another claim for VA compensation based on a disorder other than tinnitus in May 1981. In August 1993, the Veteran filed another claim for VA compensation based on disorders other than tinnitus. In August 2011, the Veteran filed his claim for VA compensation based on tinnitus. The Veteran reported recurrent tinnitus with onset during military service during his February 2012 VA examination. Subsequently, in his May 2012 notice of disagreement, the Veteran reports exposure to artillery and weapons fire aboard a destroyer while working in the boiler room without hearing protection. He further contended minimal noise exposure post-service, and that hearing protection was used during post-service noise exposure. The Veteran's service treatment records are silent as to any complaints or indications that tinnitus was incurred during service. No hearing or ear-related problems were noted in any of the several medical evaluations and reports received dating from 1963 through 1988. The Veteran consistently denied ear problems at the time of several of these examinations. Audiograms taken at several points throughout his active and reserve duty service indicate normal hearing, without any significant threshold shifts and no mention of tinnitus. His service records indicate he held a military occupational specialty of Boiler Operator during his first period of active duty, and Airplane Mechanic during his second period of active duty. The Veteran's February 2012 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In doing so, the examiner reasoned that (1) there was no evidence the Veteran suffered acoustic trauma during service, (2) the Veteran suffered no hearing loss during service, (3) there is no audiological support for the tinnitus complaint, and (4) no complaints of tinnitus were noted in the Veteran's service treatment records. The Board views the February 2012 report as showing current tinnitus. With regard to noise exposure during service, the Board acknowledges the Veteran's competency to report his exposure to noise from weapons and artillery fire while working in the boiler room of a destroyer, and to report symptoms and observations, and in this case, to self-diagnose simple conditions such as tinnitus. The Veteran's statements are also consistent with his service records confirming his military occupational specialty of boiler operator. In addition, the Board notes that his military occupational specialty of Airplane Mechanic during his second period of active duty is also consistent with noise exposure. Furthermore, VA has already conceded in-service acoustic trauma. However, the Veteran must still prove a causal relationship between tinnitus and his active service. After reviewing the totality of the evidence, the Board finds that the preponderance of such evidence is against finding the Veteran's tinnitus manifested during service, within a year following service, or is otherwise causally related to service. During his February 2012 VA examination, the Veteran claimed onset of tinnitus began in service. However, none of the Veteran's several medical examinations from 1963 through 1988 indicate any hearing or ear problems. Similarly, the Veteran consistently denied any such problems in several medical reports throughout that period. Moreover, the Veteran's service treatment records indicate treatment for other physical problems during service, none of which reference tinnitus or related ear and hearing impairment. The service treatment records are precisely where one would expect to find any complaints of such problems. With regard to the Veteran's statements that his tinnitus began in service and has been recurrent ever since, the Board does not find these assertions to be credible when viewed against the overall record. The Veteran's actions over the years are not consistent with his current assertions of recurrent tinnitus since service. It is significant that the Veteran did not include tinnitus in his 1974, 1981, and 1993 claims for VA compensation. It is reasonable to expect that he would have included tinnitus if he in fact had had recurrent tinnitus since service. His failure to include tinnitus diminishes the credibility of his current assertions. With the negative medical opinion and the diminished credibility of the Veteran's statement regarding onset and continuity of tinnitus since service, the preponderance of the evidence weighs against finding a causal relationship between the Veteran's tinnitus and active service. Therefore, the Board finds that service connection is not warranted for tinnitus. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection is not warranted for tinnitus. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs