Citation Nr: 1337549 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-00 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for ureteral cancer, claimed as due to herbicide exposure. ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1963 and from September 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the Veteran's claims for service connection for tinnitus and ureteral cancer, claimed as due to herbicide exposure. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is associated with his appeal. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records therein that are not also in the paper claims file. The issue of entitlement to service connection for ureteral cancer, claimed as due to herbicide exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record fails to demonstrate that the Veteran's tinnitus is the result of a disease or injury in active military serve. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The VCAA requires VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction (AOJ). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. at 121. In an April 2011 letter issued prior to the August 2011 rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for tinnitus, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The April 2011 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent VA and private treatment records, and providing an examination or obtaining an opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also afforded a VA examination in June 2011 for tinnitus. The examiner did not review the claims file, but considered an accurate history as reported by the Veteran. The examiner furnished an opinion including an addendum that was definitive and supported by reasons based on an accurate record. Although the examiner did not discuss the reports of continuity, the Board has, as discussed below, found the reports to be incredible. As such, the Board finds that the June 2011 VA examination was adequate for purposes of determining entitlement to service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, and statements from the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims. Hence, there is no further notice or assistance that would be reasonably likely to aid the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2) (Wet 2002). Analysis Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). Certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Also, the second and third elements may be established by showing continuity of symptomatology for chronic diseases specifically listed at 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has taken the position that sensorineural hearing loss, as a disease of the central nervous system, is a chronic disease subject to presumptive service connection and the continuity provisions of 38 C.F.R. § 3.303(b). See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. Similar reasoning would apply to tinnitus, and lead to the conclusion that this disability is also an organic disease of the nervous system and is treated as a listed chronic disease. The Veteran's hearing loss has been diagnosed as sensorineural and the Board finds it qualifies as a chronic disease; the continuity of symptoms must be considered for the claim for service connection for tinnitus. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d 1313, at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, at 1376-77. The Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran asserts service connection for tinnitus on the basis that he developed the condition due to noise exposure while in service. Specifically, on his June 2011 VA examination, he reported that he was exposed to noise while on the range in training. Service treatment records are negative for any complaints, diagnoses, or treatment for tinnitus. On his separation examination in September 1966, the Veteran made no complaints of tinnitus. The first two elements of service connection are met. The Veteran has provided competent and credible evidence of current tinnitus, and that disability was shown on the June 2011 VA examination. See Charles v. Principi, 16 Vet. App. 370 (2002)(tinnitus is the type of disability that the Veteran is competent to establish, on the basis of his own assertions). Additionally, the Veteran has reported in-service noise exposure during training. Such training would be consistent with the circumstances of his services. 38 U.S.C.A. § 1154(a); Layno, 6 Vet. App. 465, at 470. The evidence of a nexus between current tinnitus and service consists of the Veteran's reports of a continuity of symptomatology. He initially reported such continuity to VA in his April 2011 claim for benefits. At his VA examination in June 2011, the Veteran reported his in-service noise exposure on the range while in training and also reported that he was an aluminum smelter employee on a pot line for 36 years, but was required to wear hearing protection. He also reported that he had been an occasional hunter shooting right handed. He said that he had had tinnitus for as long as he could remember. The examiner, acknowledged that the STRs were not available, but opined that the Veteran's tinnitus was less likely than not related to the his in-service noise exposure due to the relatively mild hearing loss following over 30 years of the Veteran working on a pot line in an aluminum smelting operation, coupled with the Veteran's report of being primarily on clerical duty at the Military Assistance Command headquarters in Vietnam. In April 2012, after reviewing the Veteran's STRs, the same examiner affirmed his previous rationale and also added that the STRs reported no complaints of tinnitus and showed that the Veteran retained normal hearing without significant threshold shifts throughout his active period of service. Although the Veteran is competent to report the onset of tinnitus in service and a continuity of symptomatology, the Board must assess whether his reports are credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's relatively recent reports of continuity are contradicted by his normal separation examination and the fact that while he voiced some complaints on the report of medical history at separation, he did not report tinnitus. The initial reports of continuity came only after a long post-service history of working in a noisy environment, albeit with reported hearing protection, and exposure to gun fire from hunting. As discussed above, the VA examiner based his opinion on evidence of relatively mild hearing loss after over 30 years of the Veteran working in an aluminum smelting operation, the Veteran's low noise exposure while in service, and the absence of any significant threshold shifts in his hearing throughout his period of service. The Board finds that, in this regard only, the Veteran's statement as to continuity of symptomatology is not credible and lacks probative value. The most probative evidence as to nexus consists of the VA examiner's opinions. Tinnitus was not demonstrated in the year after service. As the most probative evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for tinnitus is denied. REMAND In August 2012, the Veteran submitted a statement in support of his claim in which he requested that his private treatment records from Owensboro Medical Health Systems for the period of June 2012 through July 2012, and his ongoing treatment records from Dr. Lewe be retrieved and associated with the claims file. These records have not yet been associated with the claims file. The Veteran had provided authorization to obtain these records. The record shows current residuals of urethral cancer. Also, the Veteran's STRs show that he was treated on several occasions for conditions involving his urethra. This record crosses the low threshold for triggering VA's duty to obtain an examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is remanded for the following actions: 1. Ask the Veteran to re-authorize VA to obtain the treatment records he cited in his August 2012 statement. If the Veteran does not provide authorization, tell him that he should obtain the records and submit them to VA himself. Inform the Veteran of any requested records that cannot be obtained, of the efforts made to obtain the records, and of the further actions that will be taken. 3. Then, schedule the Veteran for a VA examination to determine whether his ureteral cancer is related to service. The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner in conjunction with the examination. A notation that this review has taken place should be made in the evaluation report. The examiner should indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's current ureteral cancer, is a result of a disease or injury in service; including the Veteran's exposure to herbicides and the notations urethritis in 1961 and urethral discharge in 1966. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner should take into account the Veteran's reports of his symptoms and history. The examiner must provide reasons for the opinions. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the inability to provide the necessary opinion is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. If the issue remains denied, issue a supplemental statement of the case, then return the case to the Board, if otherwise in order. The appellant 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 of Veterans' Appeals 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs