Citation Nr: 1338042	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-13 134	)	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

A. Budd, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1970 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  
 
Although the Veteran's March 2011 notice of disagreement (NOD) began the appeal process for the issues of entitlement to service connection for tinnitus and for hearing loss, the Veteran only perfected his appeal on the issue of tinnitus.  As such, the Board does not have jurisdiction over the issue of hearing loss.


FINDING OF FACT

The most probative evidence of record fails to establish that it is at least as likely as not that the Veteran's tinnitus is attributable to active military service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus are not met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.   

A July 2010 VA letter 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).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing 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 at 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records and VA treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA).  38 C.F.R. § 3.159(c)(2).  

A VA examination was conducted in October 2010.  The record does not reflect that the examination was inadequate for purposes of determining entitlement to service connection for tinnitus.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiner reviewed the claims folder, conducted a physical examination of the Veteran, and provided an opinion as to whether there was a nexus to service with rationale.  There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  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, 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).   


Law and Regulations

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110; 38 C.F.R. §3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection on a direct basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is 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)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay people are competent to diagnose tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002).  Once lay evidence is found to be competent, the Board has a duty to address the credibility and weight to be given to the evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Facts

The Veteran contends that he developed tinnitus due to hearing the noise of printers while working as a computer operator during service.  The service treatment records (STRs) are negative as to any complaints of tinnitus during service.  The Veteran's separation examination indicates no trouble with his hearing upon exiting service, nor were there any reports of tinnitus.  

The Veteran's VA treatment records span a period from June 2010 until October 2010.  The only reference to tinnitus is a statement in August 2010 that the Veteran felt his tinnitus had grown worse and that he used white noise to help block out the ringing.  He did not indicate that the tinnitus had first begun in service.

A VA examination was held in October 2010.  The examiner reviewed the claims file, and took a history from the Veteran.  The Veteran reported a constant, severe high-pitched sound that he first noticed while in the military and which he attributed to noise exposure while serving as a key punch operator in the military.  The examiner noted the lack of complaints of tinnitus found in the Veteran's STRs, and that the Veteran denied ear problems at the time of his separation physical.  The examiner concluded that it was not likely that the Veteran's tinnitus is related to military service.  




Analysis

The greater weight of the evidence indicates that the Veteran's tinnitus was not caused by his service.  The VA examiner found that it was not likely that the Veteran's tinnitus was related to his military service, and provided rationale for the opinion that is consistent with the evidence of record.  The examiner is a medical professional and competent to render an opinion in this matter.  The probative 
value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions.  Id. at 304.  Although the Veteran took issue with the examiner's findings, the examination does not appear to be inadequate.  Moreover, in response to the Veteran's discomfort, a new audiologist reviewed the evidence.  The new examiner reached the same conclusions, noting that "[t]here is no evidence of acoustic damage."  The Veteran was offered the opportunity to have a new hearing test but declined.

The Veteran's DD214 indicates that his military occupational specialty was a clerk/typist, and the Veteran's own description of his position varies from keypunch operator to computer operator.  Acoustic trauma is not consistent with any of these positions, and so is not conceded.  38 U.S.C.A. § 1154(a) (West 2002).  The Veteran, as a lay person, is competent to diagnose tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002).  Although the Veteran competently asserted that he first experienced tinnitus during service, and has continued to experience it since that time, these assertions are inconsistent with the lack of demonstration of exposure to acoustic trauma in service, lack of complaint in service, the indication of normal ears on his separation clinical examination, and the medical history report of no ear trouble on separation from service.  There is no record of the Veteran complaining of or seeking treatment for tinnitus until his claim in June 2010, nearly 40 years after exiting service.  Normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis, complaint, or treatment for many years after service is probative evidence against the claim.  Maxson v. Gober, 230 F.3d 1333 (Fed. Cir. 2000) (It is proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that the veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition).  

In light of the absence of tinnitus complaints shown in his service records, contradictory negative history of tinnitus reported on separation from service, and negative post service records for decades after service, the Board finds that the objective medical evidence of record outweighs the credibility of the Veteran's report of onset and continuity of symptomatology.  Such records are more reliable, in the Board's view, than the Veteran's unsupported current assertion of the onset of his symptomatology which contradicts the denial of such symptoms in a medical history report completed contemporaneous with service.  See Cartright v. Derwinski, 2 Vet. App. 24. 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran).

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for tinnitus is not warranted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for tinnitus is denied.



____________________________________________
U. R. Powell
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs