Citation Nr: 1333620 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-24 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as secondary to bilateral hearing loss and/or tinnitus. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2013, the Board remanded the claims for additional development and the case now returns for further appellate review. With respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, the Board notes that the RO originally adjudicated the claim as entitlement to service connection for depression. However, the Board has recharacterized this issue as shown on the title page of this decision in light of the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA paperless claims processing system reflects that VA outpatient treatment records dated through October 2011 were added to the file in June 2012 and were considered by the agency of original jurisdiction (AOJ) in the June 2012 supplemental statement of the case. The Board further notes that an additional November 2011 VA treatment record was added to the file in May 2013, but such pertains to a flu vaccination and is irrelevant to the issues on appeal. The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT Tinnitus was first reported by the Veteran, and diagnosed, many years after his discharge from service, and is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Where complete notice is not timely accomplished, an error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, none is found by the Board. The Veteran was notified via letter dated in July 2009, sent prior to the initial unfavorable decision issued in January 2010, of the criteria for establishing service connection for and his and VA's respective duties for obtaining evidence. The letter also notified him of how VA determines disability ratings and effective dates if service connection is awarded in accordance with Dingess/Hartman, supra. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In compliance with its duty to assist, the AOJ associated the Veteran's service treatment records, VA outpatient treatment records, and private treatment records with the file. The Veteran testified that he received treatment for hearing deficits at a VA facility. A review of the file reveals that treatment records were most recently requested in April 2013 and that the most recent record associated with outpatient care was dated in November 2011. The Veteran has not indicated that there are any outstanding treatment records associated with diagnosis and treatment of tinnitus. The RO also addressed the Veteran's assertions that in 1979, following his first period of service, he attempted to enlist in a different branch of service and was disqualified because of an ear infection. The RO attempted to locate and associate the claimed 1979 entrance examination report but was unable to obtain the report. In April 2011, the RO informed the Veteran that it had not been able to obtain the report and offered him the opportunity to provide his own copies of the report. He responded in April 2011, and reported that he did not have a copy of the report. A formal finding of unavailability was made in February 2012. The Veteran was informed of this finding in February 2012. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. Moreover, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional evidence that is necessary for a fair adjudication of the claim that has not been requested or obtained. Additionally, the Veteran was afforded VA audiometric examinations in June 2011 and April 2013. The Board found that the June 2011 examination was not adequate because the examiner noted that the Veteran denied any symptoms of tinnitus. However, he later testified at the hearing that he did not understand that medical term and that had he understood, he would have responded that he did experience symptoms. In a February 2013 remand, the Board directed that the Veteran receive another examination that was performed in April 2013. This examination was adequate as the examiner conducted a thorough interview with the Veteran regarding his history and symptoms and provided a clear analysis and opinion with rationale. For these reasons, the Board finds that the April 2013 VA examination report is adequate for adjudication purposes. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). As indicated in the Introduction, the case was remanded in February 2013 in order to provide obtain VA treatment records and obtain an addendum opinion regarding the etiology of the Veteran's tinnitus. As discussed in the preceding paragraphs, additional VA treatment records were obtained in April 2013 and the Veteran was afforded a VA examination in April 2013 so as to determine the etiology of his tinnitus. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was also afforded the opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge in December 2012. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the December 2012 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal. The hearing focused on the elements necessary to substantiate the Veteran's claim for service connection for tinnitus. The Veteran testified about his symptoms and their onset and origin. Moreover, the hearing discussion did not reveal any additional evidence necessary for the adjudication of the claim. The Veteran indicated that he received treatment through VA, and relevant records are contained in the claims file. Additionally, based on the Veteran's hearing testimony, the Board obtained an addendum opinion so as to address the etiology of his tinnitus. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may adjudicate the claim based on the current record. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 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. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records including a March 1974 discharge physical examination are silent for any symptoms of tinnitus. In April 2009, the Veteran underwent a VA examination for the purpose of starting primary care. The Veteran reported a history of fullness and draining of fluid from the left ear. In an herbicide disability screening examination the next month, the Veteran reported a history of a tympanic membrane perforation in the left ear. In September 2009, the Veteran was examined in greater detail in a VA ear, nose, and throat clinic. A VA nurse practitioner (NP) noted the Veteran's report that the perforation had been present for 25 years. On examination, the NP observed a 30 percent perforation with no current infection and recommended surgical repair. He did not mention a sensation of ringing in any of these treatment encounters. In June 2011, the Veteran underwent a VA audiometric examination. Although the audiologist did not review the claims file, she noted a detailed history of military activities and symptoms from the Veteran's reports. The Veteran first experienced a left ear infection in 1976 and was denied enlistment in the Navy in 1979 because of a recurrent infection. He experienced an episode of dizziness in 1980 and was diagnosed with a left tympanic membrane perforation but declined surgical repair at that time and again in 2000. The Veteran reported working periodically for 40 years after active service in various manufacturing facilities. Testing showed conductive hearing loss in the left ear which the audiologist attributed to the perforation. The Veteran denied any symptoms of tinnitus. In a December 2012 Board hearing, the Veteran described his military duties as a medical specialist that included providing standby emergency medical care at missile launch facilities with exposure to noise during launch operations. He also drove a vehicle that transported patients from aircraft to the medical facility exposing him to noise on the flight line. The Veteran stated that he received all medical care at VA facilities. He further stated that when asked about current symptoms of tinnitus during the June 2011 examination, the Veteran denied symptoms because he did not understand the meaning of the term "tinnitus" and would have answered in the affirmative if he had been asked if he had ringing in the ears. In April 2013, another VA audiologist noted a review of the claims file including the report of the June 2011 examination and the Veteran's Board testimony. The audiologist summarized the Veteran's in-service and post-service noise exposure with additional detail that the Veteran worked after service from 1976 to 1986 at a soft drink bottling facility without the use of hearing protection. He also noted the history of recurrent left ear infections and tympanic membrane perforation and that the Veteran's left ear hearing loss was identified several years after active service. The Veteran reported that he currently had difficulty hearing the television and conversations when speakers are on his left side. Regarding tinnitus, the Veteran reported that he sensed ringing only in his left ear and that the symptom began in 2010 with a gradual onset without connection to a specific event. The symptoms occurred once every two weeks and lasted from approximately five minutes. The audiologist concluded that the Veteran's current left ear tinnitus was not due to acoustic trauma in service but rather was related to the mixed left ear hearing loss. He explained that this hearing loss and the symptoms of tinnitus began after active service and that the tinnitus began after a significant period of post-service occupational noise exposure. The Board finds that the April 2013 VA examiner's opinion is entitled to great probative weight as the examiner considered the Veteran's in-service and post-service noise exposure, his statements regarding the onset of such disorder, and the current nature of his symptomatology in rendering his opinion. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, the Board finds that the April 2013 VA examiner's opinion and rationale are determinative. In reaching this decision, the Board notes that the Veteran has contended on his own behalf that his tinnitus is related to noise exposure during his military service. The Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, the Board finds that the question regarding the potential relationship between the Veteran's tinnitus and any instance of his military service, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe the ringing in his ears, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the etiology of tinnitus falls outside the realm of common knowledge of a layperson as such involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and his current tinnitus. In contrast, the April 2013 VA examiner took into consideration all the relevant facts described above in providing his opinion. Therefore, the Board accords greater probative weight to the VA examiner's etiological opinion. Consequently, the Board finds that, as the Veteran's contentions regarding the etiology of his tinnitus are not competent, they are outweighed by the probative VA examiner's findings. Furthermore, the evidence shows that the Veteran's tinnitus manifested in 2010, many years after service, and is associated with left ear organic and hearing acuity deficits that also first manifested after service and are not service-connected. Moreover, the Veteran himself has not alleged a continuity of symptomatology of tinnitus since service. Rather, he acknowledged that there was no symptomatology prior to 2010. Therefore, the Board concludes that service connection for tinnitus is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for tinnitus is denied. REMAND In a December 2012 hearing, the Veteran raised the issue of service connection for an acquired psychiatric disorder on a secondary basis. As directed in the Board's February 2013 remand, the AOJ provided an additional notice the same month that included the criteria for secondary service-connection followed by readjudication of the claim in an April 2013 supplemental statement of the case with an opportunity for the Veteran to respond. In a February 2013 remand, the Board deferred adjudication of the claim for service connection for an acquired psychiatric disorder because it was intertwined with the pending claim for service connection for tinnitus. As neither bilateral hearing loss nor tinnitus is service-connected, the Board may proceed with consideration of service connection for an acquired psychiatric disorder. The Board finds that a remand is necessary to provide the Veteran with a VA examination. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. During a December 2012 Board hearing, the Veteran contended that he experienced feelings of depression during active service after his mother died and that he then began abusing alcohol. The Veteran acknowledged that he was not currently receiving any mental health treatment. Service treatment records are silent for any symptoms, diagnoses, or treatment for depression or any psychiatric disorder. In a March 1974 discharge physical examination, the Veteran denied any depression, excessive worry, and nervous trouble, and the examining physician noted no psychiatric abnormalities. In September 1989, a VA clinician noted that the Veteran requested and was admitted to a combined university/VA alcohol abuse research program that included group and individual education, counseling, therapy, and vocational rehabilitation. The attending psychiatrist noted that the Veteran had previously received alcohol abuse treatment for only a few days in 1983 but had relapsed after a month. The Veteran reported that at that time he abused alcohol because of unemployment and idleness. The psychiatrist noted that his current request for treatment followed a conviction for driving while intoxicated and was sought to avoid fines and incarceration. On examination at entry into the program, the psychiatrist noted no memory, concentration, cognition, or mood deficits. Part of the program was a depression screening inventory test that showed symptoms in the "insignificant range." Upon completion of the program, the psychiatrist diagnosed only "alcohol dependence continued." In March 2009, a VA social worker noted that the Veteran was working as a church custodian and reported experiencing "down days" when he had to force himself to do things. The social worker noted that the Veteran expressed "...fears of the unknown and he is still bothered by thoughts of plane crashes even though he has never seen one." The Veteran denied any previous mental health treatment and any alcohol use in the past eleven years. The social worker did not record the performance of any type of clinical mental health examination but diagnosed depressive disorder, not otherwise specified, and provided information to the Veteran on a depression management group therapy program. There is no record that the Veteran ever attended the therapy sessions or followed-up with any other mental health care. In an April 2010 primary care encounter, the Veteran denied any feelings of depression or lost interest in doing things. In a December 2012 Board hearing, the Veteran stated that he experienced feelings of sadness and lack of motivation at times that started when he was hospitalized in 2008. Records show that the hospitalization was for significant gastrointestinal disorders but were silent for any mental health symptoms. He also acknowledged a history of alcohol abuse that started during military service and that his hearing loss and tinnitus contributed to his depressive symptoms. The only diagnosis of a mental health disorder of record is that noted by a social worker in March 2009. Generally, a licensed social worker can be assumed to have training and experience in the evaluation of mental health symptoms but at a level of expertise less than a psychiatrist or psychologist. Therefore, there is some credible evidence of a current psychiatric disorder although the extent of the examination and basis for the diagnosis is not adequate to form a decision on the claim. The Veteran indicated that he first experienced symptoms of depression in service concurrent with his mother's death with symptoms caused by various other reasons after service. The social worker's diagnosis and the Veteran's suggestion that he currently experiences depression related to the mother's death in service meets the low threshold for a VA examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination by a psychiatrist or psychologist to determine the current nature and etiology of an acquired psychiatric disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. For any currently diagnosed acquired psychiatric disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such began in or is otherwise related to the Veteran's military service, to include the death of his mother or any other aspect of military service. In offering any opinion, the examiner must consider the lay statements of record regarding the Veteran's symptoms and experiences and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claims remain denied, issue the Veteran and his representative a supplemental statement of the case with an appropriate opportunity for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs