Citation Nr: 1335133 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-20 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to July 1968. This appeal comes to the Board of Veterans' Appeals (Board) from an a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes that the Veteran testified before a Veterans Law Judge in a January 2011 videoconference hearing and such hearing transcript is associated with the claims file. However, during the pendency of the appeal, the Veterans Law Judge retired. Accordingly, the Veteran was notified in a March 2012 letter that he was entitled to another hearing before the Board. See 38 C.F.R. § 20.707. The Veteran responded in March 2012 that he did not wish to appear at another Board hearing. As such, the Board may proceed on the appeal. This appeal was previously before the Board in December 2011 and May 2012. The Board reopened the claim in May 2012 and remanded the claim so that the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. In the September 2013 informal hearing presentation, the Veteran's representative waived RO jurisdiction of any evidence added to the claims file after the June 2012 Supplemental Statement of the Case. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Tinnitus was not first manifested during active service; the competent and credible evidence is against a finding that tinnitus is related to military service. CONCLUSION OF LAW The criteria for service connection of tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Two August 2009 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also met its duty to assist the Veteran in the development of the claims. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he contended were relevant to the present claims. The Veteran was an active participant in the claims process by responding to notices, submitting evidence and providing testimony. The Veteran did not provide any authorization and consent forms to pursue private treatment records, nor has he otherwise asked VA to obtain such records. See Wood v. Derwinski, 1 Vet. App. 190-192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran has been afforded a VA examination conducted in June 2012; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007). The report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The VA examiner considered Veteran's description and history of his symptoms including past treatment, reviewed prior medical evidence and claim file, conducted a thorough examination and provided a detailed report of the Veteran's condition with a clear opinion and rationale connecting the evidence to his conclusions. Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection for certain diseases, such as certain neurological disorders, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Board notes however, that in this case, there is no medical evidence of record showing a diagnosis of tinnitus within one year of service, therefore, service connection on a presumptive basis would not be warranted. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);(2) the layperson is reporting a contemporaneous medical diagnosis, or;(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran contends that his current tinnitus is the result of his active service. He has argued that he was exposed to hazardous noise during service, and that his tinnitus began in service. He has indicated that his post-service noise exposure only aggravated the tinnitus he developed in service. He described noise exposure from air guns, ammunition and machinery in service and from similar machinery post-service. Service treatment records do not contain complaints of hearing or ear symptoms or tinnitus. The Veteran's separation examination did not include an audio test. The Veteran did not complain of or report symptoms of tinnitus during his separation evaluation. The claims file contains treatment records from as early as 1969. There are no complaints of tinnitus or other ear/hearing symptoms from 1969 until 2003. During his 1969 VA examination it was noted "no hearing loss complaints." In June 2003, the Veteran complained of intermittent tinnitus, bilaterally, "for many years." He reported a history of military and civilian noise exposure. The Veteran was diagnosed with sensorineural hearing loss and provided hearing aids. In August 2003, the Veteran complained of "having problems" with his hearing aids. He stated that he worked at a dry cleaning business, and the "machinery was too loud for him to wear his hearing aids and that he had ringing in his ears when he would go home in the evenings." He was instructed not to wear his hearing aids at work since "the noise was enough to do damage on its own, even without amplification." He was encouraged to wear hearing protection while at work. During a January 2009 psychiatric examination, the veteran complained of "significant hearing declines." A February 2010 audiology consultation noted the Veteran's reported history of first noticing hearing loss in 2003 when he could not hear a bell at his base. He reported worsening hearing recently. He reported that wearing his hearing aids improved his tinnitus. In January 2011, the Veteran testified at a Board hearing before a Veterans Law Judge. He reported that during service he was in the Boatman's Rank Division and he worked chipping pain with air guns and loading ammunition. He stated he was next to large guns being shot due to his duties loading ammunition. Later, his duty station changed and he worked in the laundry around 100 lbs. washers. He stated that the washers would hum and were "real high pitched." He reported he worked 8-hour shifts with the washing machines. He stated that after service his jobs were in the dry cleaning industry, and that the noise was "pretty much more or less, you know, about the same as it was in the military." He was referring to his laundry duties during service, and not the air hammer or guns. When initially asked "when did you first start experiencing the ringing in the ears and when did you first start experiencing the complaints of people telling you you must not be hearing right?" the Veteran responded "in 2003." However, when asked "what about the ringing in your ears-when did it begin?" the Veteran stated it began in service in 1968 or 1966. His representative then stated that his ringing began in service but he sought treatment for it in 2003. In June 2012, the Veteran was afforded a VA examination in conjunction with his tinnitus claim. The examiner noted the Veteran was exposed to 8-inch gun fire in service and the noise from laundry machines while in service. He did not wear hearing protection. The examiner reviewed the records and noted the Veteran had a normal hearing evaluation at enlistment, but that there were no results from separation. The examiner noted that the Veteran has worked in the dry cleaning business from 1969 to the present. He noted that it was a noisy environment and the Veteran did not get hearing protection until 2010. His employment exposed him to loud machinery, spinners, dryers and air compressors. The Veteran reported the onset of intermittent tinnitus occurred in 1997 or 1998. He felt he was still able to hear well until 1999 when he began to have difficulty understanding the spoken word. He indicated he could still hear sound but not understand words. He was fitted for hearing aids in 2003, and reported that he now has constant bilateral tinnitus. The examiner opined that the Veteran's tinnitus was less likely as not due to his active service because he reported that his tinnitus was first noticed in 1997, his hearing was "real good" until 1999 and he had more than 40 years of noise exposure post-service. On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. When a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. The Veteran's DD 214 lists his MOS as SH 3140. The Duty MOS Noise Exposure Listing lists a SH as a ships servicemember, and a low probability of noise exposure. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Veteran is competent to diagnose tinnitus as it is a completely subjective disorder. While the Board notes that the Veteran is credible to report the development of tinnitus, the record contains conflicting information regarding the onset of tinnitus. During his 2011 testimony the Veteran reported that his tinnitus began in service. During his VA examination the Veteran reported noticing his tinnitus in the 1990s. The Board finds statements offered directly to health care specialists to be inherently more credible than those offered to the RO or the Board in support of a claim. The Board notes additionally that treatment records prior to 2003 do not include complaints of tinnitus or hearing loss even though records contain complaints of other physical and psychiatric symptoms. As such, the Board cannot find the Veteran's statements of onset in service and continuity of symptomatology thereafter to be credible. On his May 2010 substantive appeal the Veteran noted that he believed his tinnitus had onset in service but that it was aggravated by his post-service noise exposure. However, a medical professional has found that the Veteran's tinnitus is not likely due to his in-service noise exposure due to his significant post-service noise exposure and the onset of his symptoms almost 30 years after discharge from service. In summary, the medical evidence of record addressing the etiology of the Veteran's tinnitus indicates that it is not related to service. The Veteran's statements regarding onset are conflicting, and there is no complaint of tinnitus prior to 2003. For these reasons, and considering all of the other evidence of record, the Board finds that the preponderance of the evidence is against granting service connection for tinnitus. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); See Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs