Citation Nr: 1334078 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-12 390 ) 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 November 1974 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2012, a statement of the case was issued in April 2013, and a substantive appeal was received in April 2013. 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 was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service. CONCLUSION OF LAW Tinnitus was not incurred in or causally related to military service. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING 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). 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). This matter was filed as a fully developed claim (FDC) pursuant to Secretary of Veterans Affairs Eric K. Shinseki's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for VA to further develop the claim and thereby allowing VA to adjudicate the claim on an expedited basis. When filing a fully developed claim, a Veteran agrees to submit all evidence relevant and pertinent to his claim, other than service treatment records (STRs) and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran. New evidence submitted after a rating decision is issued but within the one-year period following submission of a claim can be considered, although such consideration precludes the Veteran's continued participation in the FDC process. See VA Form 21-526EZ. The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. See VA Form 21-526EZ. Thus, the notice that is part of the FDC form submitted by the Veteran satisfies the VCAA duty to notify. 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, along with relevant lay statements. 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. 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). In May 2012, the Veteran was provided a VA examination. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the adequacy of such. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examination and opinion rendered sufficiently considered the claims file, outlined the underlying reasoning, considered the relevant medical facts and principles, and addressed the nature and etiology of the Veteran's disability. Accordingly, the Board finds that VA has satisfied its duty to assist, and to provide an adequate examination under Barr. See id.; 38 C.F.R. § 3.159(c)(4). 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 issue before the Board involves a claim of 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). A veteran is competent to describe symptoms that during or after service that he perceived 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 v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness 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). 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). 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 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. 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). The Veteran's service treatment records are extensive, but silent as to any complaints of tinnitus. Multiple audiometric examinations during service reflect normal hearing during service. Entrance and separation examinations did not report any relevant complaints. There are no private treatment records to show complaints of tinnitus after service. Upon May 2012 VA examination, the Veteran endorsed having tinnitus at the time, and that he was exposed to military vehicle noise during service. The Veteran added that he first noticed his tinnitus during service. In addition, the Veteran reported working factory jobs for ten or more years and landscaping for two years after service. The Veteran also stated his ears constantly felt stopped up, and that he had sinus problems. The Veteran stated that his ears frequently feel plugged up, and approximately once per day such sensation is accompanied by a moderate bilateral high-pitched ringing. The ringing disappears upon wiggling his fingers around in his ear. The May 2012 VA examination reported normal bilateral hearing in an audiometric examination, and the examiner at the time opined that tinnitus was less likely than not caused by or a result of military noise exposure. In doing so, the examiner notes that the Veteran describes his tinnitus as infrequent, of short duration, and related it to his sinus problems. Upon weighing and reviewing the evidence of record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's tinnitus manifested during, or within one year of, active military service, or that it is otherwise causally related to service. In doing so, the Board acknowledges that the Veteran is competent to self-diagnose tinnitus, and to endorse military noise exposure. However, while the Veteran's statements thereof establish the current disability, he still must demonstrate a causal relationship between his service and tinnitus. Here, there is conflicting evidence that must be weighed. While the Veteran endorsed first noticing tinnitus during service, the May 2012 VA examiner opined that tinnitus is less likely than not related to service, attributing it to the Veteran's sinus problems instead. While the Veteran is fully competent to report his observation of symptoms, the VA examiner is singularly competent to attribute a medical cause to certain symptoms. In addition, the May 2012 examination's detailed rationale and consideration of objective and subjective data affords it great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion is dependent upon whether the opining clinician (1) was fully informed of the pertinent factual premises (i.e., history) of the case; (2) provided a fully articulated opinion; and (3) supported that opinion with analysis). In contrast, the Veteran's statements relating his current tinnitus to his military service are inconsistent with other evidence of record. In particular, while the Veteran endorses experiencing tinnitus during service, all service records are silent as to any complaints of such. The Veteran's service treatment records document numerous times where he sought treatment for a variety of physical problems. However, there are no notations of any complaints of tinnitus. The service treatment records are exactly where one would expect to find pertinent complaints documented. The Veteran's separation examination also contained no complaints of tinnitus. Moreover, the Veteran attributes his tinnitus to in-service exposure to vehicle noise, but reports he worked in a factory for ten years after service, which could also be consistent with daily exposure to loud noises. The Board also finds it significant that the Veteran did not include tinnitus on his November 1977 VA claim based on another disability. It would seem reasonable that he would file a tinnitus claim at that time if he in fact believed that he had tinnitus which started during service. Moreover, he did not voice any complaints of tinnitus at the time of a VA examination in January 1978. The Veteran's failure to report tinnitus during service when he had the opportunity and at the 1978 VA examination is inconsistent with his current assertions of the onset of tinnitus during service. In light of these inconsistencies, the Board finds the Veteran's statements are less than credible, and that the May 2012 VA examiner's opinion holds greater probative value for the issue of nexus. See Caluza, 7 Vet. App. at 511 (1995). Accordingly, the Board finds that the preponderance of the evidence of record weighs against finding a causal relationship between the Veteran's disability and military service. As such, while mindful of the benefit-of-the-doubt rule, the Board finds it is not for application, and the appeal must be denied. ORDER Service connection for tinnitus is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs