Citation Nr: 1334025 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-22 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. 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 has not been shown to have tinnitus that is related to his military service or service-connected hearing loss. CONCLUSION OF LAW Tinnitus was not incurred in active service is not proximately due to, the result of, or aggravated by service-connected hearing loss. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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 claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in May 2010, prior to the initial decision on the claim in September 2010. That letter informed the Veteran about the information and evidence that is necessary to substantiate his claim for service connection on a secondary basis and of the division of responsibilities in obtaining such evidence. The May 2010 letter also explained how disability ratings and effective dates were determined. The Board does acknowledge that the May 2010 notice letter did not specifically inform the Veteran of the evidence necessary to substantiate his claim for service connection on a direct basis. However, the letter did indicate that VA needed evidence showing that his tinnitus existed from his military service to the present time, and the July 2012 statement of the case contained all pertinent regulations, including 38 C.F.R. § 3.303. Moreover, the Veteran and his representative have expressed an understanding of the principles involved, inasmuch as they have gathered evidence to support the claim and have advanced supportive argument as well. In particular, the Veteran stated in his September 2010 notice of disagreement that tinnitus has occurred since his military service. He indicated that he was less aware of it earlier in his life, but noted that it became increasingly noticeable about 20 years earlier. He also submitted an article regarding tinnitus caused by loud noises and asserted that he had noise exposure in service from tanks and artillery. The Veteran reiterated those contentions in his August 2012 VA Form 9 and made additional argument as well. Such allegations and the submission of evidence clearly demonstrate his knowledge of what evidence is required to substantiate his claim. Thus, the appellant had actual knowledge of the information needed to substantiate his claim, and a reasonable person could be expected to understand what was needed. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a notice error). Additionally, the Veteran and his representative have not alleged any prejudice as a result of any notification error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Accordingly, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He has not identified any other outstanding records that are pertinent to his claim for service connection for tinnitus. The Veteran was also afforded a VA examination in August 2010, and an addendum opinion was provided in June 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and addendum opinion in this case were adequate, as they were predicated on a review of the Veteran's medical history as well as on an examination. He provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the examiner specifically discussed the frequency and duration characteristic of tinnitus associated with noise exposure. The Board acknowledges that the Veteran has contended that there were inadequacies with his VA examination and addendum opinion. Specifically, the Veteran claims that the August 2010 examiner (who is the same examiner who provided the June 2012 addendum opinion) never discussed his tinnitus at the August 2010 examination; that the examiner misinterpreted his statement about the onset of his tinnitus; that he should have received a tinnitus only VA examination; and that the examiner was biased in providing his addendum opinion. The Board notes that VA medical examiners are presumed competent in the absence of clear evidence to the contrary See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Nevertheless, review of the August 2010 VA examination report shows that tinnitus was discussed at that examination, as the examiner's report indicates that this condition was addressed in his interview with the Veteran. Additionally, this report clearly contains an opinion with regard to tinnitus. The Veteran has also claimed that the VA examiner misinterpreted his statement in his notice of disagreement, wherein he stated that "Tinnitus has occurred since my service." Review of the August 2010 VA examination report reveals that the examiner interviewed the Veteran. While the Veteran stated that he was aware of his hearing loss "right out of the service," he also stated that his tinnitus had been present "probably for 20 years." These quotation marks appeared in the August 2010 examination report, thereby denoting the Veteran's exact statements at that visit. It appears to the Board that the Veteran provided different onset dates to the examiner for his hearing loss and tinnitus at this examination. Moreover, for reasons that will be discussed in further detail below, the Board finds that, even if there was a miscommunication, the examiner opined that the frequency and duration of the Veteran's tinnitus were not characteristic of tinnitus associated with noise exposure. The Veteran's statements regarding onset were separate from this additional rationale provided by the examiner. Additionally, the Board finds that VA does not owe the Veteran an examination solely for his tinnitus claim; a VA examination by an audiologist for both the Veteran's hearing loss and tinnitus claims was appropriate. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." An audiologist was the appropriate medical provider to examine the Veteran for his hearing loss and tinnitus claims. The Board finds no prejudice to the Veteran in the request that a competent and appropriate examiner review both claims at one appointment. While the Veteran is correct that the RO requested an additional VA medical opinion regarding his tinnitus claim, this request was not the result of any failure by the August 2010 examiner to address tinnitus during the August 2010 VA examination. Rather, it was an attempt by the RO to provide every benefit of the doubt to the Veteran. Indeed, the RO specifically requested an opinion as to whether the Veteran's tinnitus was secondary to his hearing loss, which had been granted service connection since the time of the first VA examination. Interestingly, the Veteran has claimed that the VA examiner was biased towards him, yet that same examiner provided the opinion that was the basis for the grant of service connection for bilateral hearing. Thus, the examiner was willing and able to render a favorable opinion when he believed it was warranted in this case, thereby demonstrating that he was not biased toward this particular Veteran. The Board also finds that there was no prejudice to the Veteran in obtaining an addendum medical opinion rather than an examination. He had already been provided an examination in August 2010. Tinnitus is a subjective condition, and there were no objective tests that the VA examiner could have further performed to evaluate the Veteran's tinnitus. The Veteran has not explained why another examination would be necessary or helpful in this case. Thus, it appears that there would have been no benefit in providing the Veteran another examination rather than obtaining a medical opinion. The Board concludes that the VA examiner provided adequate, competent opinions. He reviewed the Veteran's claims file, interviewed the Veteran, and performed an evaluation of the Veteran in August 2010. He provided opinions addressing the Veteran's tinnitus in both the August 2010 and June 2012 reports, which were supported by rationale as well as by the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service connection may not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 38 C.F.R. § 3.310. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. The Veteran's service treatment records are negative for any complaints, treatment or diagnosis of tinnitus. There is also no evidence that he complained of or sought treatment for tinnitus immediately following his military service or for many years thereafter. In fact, his VA medical records do not document any reports of tinnitus or ringing in his ears, and at an October 2007 office visit with a private provider, Dr. L.J. (initials used to protect privacy), the Veteran specifically denied experiencing tinnitus. He also told the August 2010 VA examiner that tinnitus had been present for about 20 years, which would place the onset at approximately 20 years after his military service. The Board notes that the Veteran has asserted that he has had tinnitus since service in both his notice of disagreement and substantive appeal. The Veteran is competent to report his experience and symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to observable symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. 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")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has experienced tinnitus since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service. Moreover, as noted above, the Veteran has provided inconsistent statements regarding the onset of his tinnitus. In fact, despite claiming in his notice of disagreement and substantive appeal that he has had tinnitus since service, he told the August 2010 VA examiner that it began 20 years earlier, which would have been nearly 20 years after his period of service. He also denied having tinnitus in October 2007. In addition, the Veteran's recent statements reporting a long history of tinnitus are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his ears. See AZ v. Shinseki, No.2012-7046, 2013 WL XXXXXXX, at *Y (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the Veteran's post-service medical records list numerous medical complaints, but nothing related to the currently claimed disorder. Significantly, based upon the language and context of the VA medical record dated in March 2007 (new patient examination), the Board finds that the Veteran was reporting all symptoms and medical conditions that he was experiencing at that time. In fact, he specifically reported difficulty hearing, yet made no mention of ringing in his ears. Therefore, his failure to report any complaints of tinnitus at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. Based on the foregoing, the Board finds that the Veteran's reported history regarding the onset of his tinnitus is not credible. Therefore, the Board finds that the Veteran's tinnitus did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that tinnitus manifested during active duty service or within close proximity thereto, the evidence of record does not link any current disability to the Veteran's military service or his service-connected bilateral hearing loss. The Veteran has argued that he had noise exposure during his period of service and that this was the injury sustained from which his tinnitus resulted. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). The post-service medical records also show that the Veteran has tinnitus. In addition, he has been granted service connection for bilateral hearing loss. Thus, the remaining question in this case is whether the Veteran's current tinnitus is related to his military noise exposure or may be secondary to his service-connected hearing loss. The August 2010 VA examiner reviewed the Veteran's service treatment records and interviewed him with regard to his tinnitus. The Veteran stated that his tinnitus was present about twice per month, and when present, it varied from a few minutes to a couple of days. He also reported that he had trouble hearing in crowded rooms and could not hear buzzers. He stated that his tinnitus had been present for "probably for 20 years." The examiner noted that the Veteran had been exposed to loud noise in service as a tank crewman and in serving one year in Vietnam, as well as in his civilian position as a chip and log truck driver. He noted the Veteran's report that ear protection was used during his civilian positions, but not in service. The examiner also noted that the Veteran used to hunt. After evaluation, he opined that the Veteran's tinnitus was not caused by noise exposure in service. In the rationale for his opinion, the examiner stated that no evidence could be found that linked the Veteran's tinnitus to service. He noted that the Veteran had stated that his tinnitus began 20 years earlier, but that he had separated from service over 40 years ago. He also commented that the frequency and duration of the Veteran's tinnitus were not characteristic of tinnitus associated with noise exposure, as the Veteran had stated that his tinnitus was present only a couple times per month. In June 2012, the same VA examiner provided an addendum opinion for the Veteran's tinnitus claim and found that the Veteran's tinnitus was not secondary to his service-connected hearing loss. He stated that there was no change in his August 2010 opinion regarding tinnitus. As tinnitus is subjective, he noted that he had given significant weight to the Veteran's description of its onset and progression. The examiner again noted that the Veteran had reported an onset of tinnitus 20 years earlier and that the tinnitus was periodic, occurring twice per month with a duration from a few minutes to a couple of days. He opined that the Veteran's tinnitus was not secondary to his hearing loss because the tinnitus had a delayed onset and the frequency and duration of the tinnitus, as described by the Veteran himself, was not characteristic of tinnitus associated with noise exposure. He further noted that tinnitus is usually associated with nerve damage from hearing loss; if the Veteran had nerve damage from hearing loss when he left service in January 1970, his tinnitus would likely have been more frequent. Finally, he noted the Veteran's noise exposure in his civilian positions and opined that the tinnitus was likely related to his civilian occupational noise exposure, as the tinnitus occurred many years after separation from service as well as many years after the Veteran's position as a chip and log truck driver. For the reasons previously discussed, the Board finds the VA examiner competent to provide an opinion regarding the Veteran's tinnitus. The Board also finds that this examination and addendum opinion to be adequate and probative. The only other opinion in this case is that of the Veteran. However, the Board finds that the VA examiner's opinions are more probative, as they were provided by a medical professional with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge The Board does acknowledge that the Veteran submitted an article regarding tinnitus and military noise exposure. However, this evidence is general in nature, and no examiner has specifically related the information contained therein to the Veteran. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Thus, the Board finds that the medical literature is of little probative value in this case. For the reasons outlined above, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for tinnitus. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs