Citation Nr: 1338459 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-07 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1967. This decision comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for bilateral hearing loss 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 competent and credible evidence fails to establish that the Veteran has tinnitus as a result of his active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Board notes at the outset that, in accordance with The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VAA notice requirements). 38 C.F.R. § 3.159 (b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The record reflects that the Veteran was mailed a letter in December 2011 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The December 2011 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, following the provision of the required notice and the completion of all indicated development, the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Veteran has also been afforded adequate assistance in response to his claim. Service treatment records (STRs) and identified VA treatment records have been associated with the claims file. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran has been afforded the appropriate VA examination. The examination report is more than adequate. Rationale was provided with the negative opinion. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. 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. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran asserts that he has tinnitus as a result of hazardous noise exposure sustained in active service. He reports that his tinnitus had its initial onset in service, and that he has been suffering from it since that time. He indicates that he was informed in-service that there was no treatment for his tinnitus. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. The Board finds it significant that the Veteran has presented no evidence dated during the appeal period showing an actual diagnosis related to the claimed disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is also no evidence of tinnitus at any time proximate to when the Veteran filed his claim. See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a diagnosis predating the filing of a claim). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. In light of these circumstances, the Board finds that service connection may not be awarded. The Veteran is competent to identify tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, while he is deemed to be competent to identify tinnitus as to existing inservice, post-service, and presently, the Veteran's testimony is not found to be credible. First, a review of the STRs is negative for complaints or diagnosis of tinnitus. There was no reference to any ear trouble at the time of service discharge. Next, a September 2009 VA audiology consultation shows that the Veteran endorsed symptoms of hearing loss but made no reference to tinnitus. Such weighs against the claim. Had he been experiencing tinnitus, it would have seemed logical to have mentioned it at that time. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) ( a lack of notation of symptoms where such notation would normally be expected may be considered as evidence that the symptoms did not exist). The Veteran's recent statements reporting a long history of symptoms of tinnitus are similarly contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his alleged tinnitus. 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 filed claims for VA benefits in 2001, 2007, and 2009 and identified medical complaints, but nothing related to the currently claimed decision. Based upon the language and context of the earlier claims, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time that he believed to be related to service. 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. Indeed, even when he filed his claim of entitlement for service connection for a bilateral hearing loss disability in June 2010, the Veteran made no reference to a history of tinnitus. He also made no mention of tinnitus when he underwent a VA audiology examination in August 2010. Such was the basis of determining that the Veteran did not have tinnitus, and that it was less likely than not that the Veteran had tinnitus as a result of active service. It was not until the RO inferred a claim for tinnitus in its September 2010 decision that the Veteran even presented any evidence of a tinnitus diagnosis. His first complaint of diagnosis was not until he submitted his notice of disagreement in October 2010. Put another way, there was no evidence of tinnitus until the RO denied the claim. The Veteran report in his October 2010 notice of disagreement and his March 2012 appeal that he has experience tinnitus are inconsistent with the other evidence of record. In this regard, as discussed above, since his separation from active service the Veteran has filed several claims for service connection for various disabilities, including a claim for service connection for bilateral hearing loss in June 2010. However, the Veteran has not filed a claim of entitlement to service connection for tinnitus at any time. The claim was inferred by the VA RO. Further, the Veteran was afforded a VA audiology consultation at the VAMC in September 2009, and a VA audiology examination in August 2010, yet he did not report experiencing tinnitus at either of those examinations. In fact, he specifically denied experiencing symptoms of tinnitus. Because of the inconsistent statements provided by the Veteran regarding whether he experiences symptoms of tinnitus and the onset of his symptoms of tinnitus, and the absence of a claim of entitlement to service connection for tinnitus despite filing claims of entitlement to service connection for other disabilities, the Board finds that the Veteran's statements that he has experienced tinnitus since service are not credible. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection is not warranted. 38 U.S.C.A. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is denied. REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran has asserts that he has bilateral hearing loss as a result of hazardous noise exposure sustained during active service. He reports hazardous noise exposure as a result of his field artillery assignment. A review of the Veteran's DD Form 214 shows that the Veteran's military occupational specialty (MOS) while in active service was listed as field artillery. As noted above, the Board concedes acoustic trauma at this time. The Veteran was afforded a VA audiological examination in August 2010. The examiner diagnosed moderate, to profound, sensorineural hearing loss in both ears. The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss was related to his active service because his hearing acuity was within normal limits at separation. The examiner noted that this "clearly indicates" that the Veteran's hearing loss did not occur while in the military. The examiner also noted that the Veteran had a history of unprotected exposure to hazardous military noise as well as civilian noise while working in a factory as a forklift driver subsequent to his separation from active service. The Board notes that the threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A review of the Veteran's STRs shows that at the time of his enlistment examination in November 1965, the Veteran was noted to have hearing within normal limits. A review of the Veteran's September 1967 separation examination shows that the Veteran's hearing shifted 5 decibels at 2000 and 4000 Hz and 10 decibels at 1000 decibels in his right ear, and 5 decibels at 1000, 2000 and 4000 in his left ear. The examiner did not address the threshold shift in the Veteran's hearing acuity during active service, despite these values remaining in the normal range. The Court has specifically held that the a Veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, the VA examiner did not address the Veteran's contention that he noticed his hearing loss as early as 1974 when he applied for a job and failed the hearing test. The examiner also did not acknowledge the Veteran's assertion that while working in a factory setting he wore hearing protection because if he were without hearing protection he would have been subject to immediate termination. In light of these deficiencies, the August 2010 VA examiner's opinion is not adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of his bilateral hearing loss. As the case is being remanded, the Board will take the opportunity to obtain any outstanding treatment records. Accordingly, the case is REMANDED for the following action: 1. Copies of all outstanding treatment records, to include VAMC records, and any other records identified by the Veteran, should be obtained and added to the claims folder. 2. The Veteran should be afforded a VA examination with the appropriate examiner in order to determine the nature and etiology of his bilateral hearing loss. All indicated studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed bilateral hearing loss had its onset in service or is otherwise etiologically related to active service, to include in-service noise exposure. The examiner should obtain a thorough history of in-service and post-service noise exposure. Consideration must also be given to the Veteran's lay statements of experiencing bilateral hearing loss since service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development that the RO deems necessary, the claim for entitlement to service connection for bilateral hearing loss should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs