Citation Nr: 1338927 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-07 357 ) 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: Missouri Veterans Commission ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran had active military service with the United States Marine Corps from May 1967 to April 1971, to include a tour of duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefit sought. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT Tinnitus was first manifested after separation from service, as a result of a post-service traumatic brain injury. CONCLUSION OF LAW The criteria for service connection of tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties 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. An April 2009 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 the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 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. 38 C.F.R. § 3.159(c)(2). A VA examination was conducted in December 2009; the examiner made all required findings and rendered the necessary opinion with supporting rationale. Further, when the Veteran objected to the interpretation of the findings, the examiner submitted a clarifying addendum in November 2011. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination, with addendum, is fully adequate for adjudication. There is no indication in the record that any additional evidence, relevant to the issues 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, 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). Analysis 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, 1131; 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). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes 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); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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. A review of service treatment records reveals no complaints of or treatment for tinnitus or any other ear complaint. At separation from service, examination was normal. In October 1971, approximately six months after separation from service, the Veteran was in a motorcycle accident and sustained a severe head injury. He was rendered unconscious and in fact was comatose for a time. At a December 1971 VA examination for pension purposes, the Veteran complained of subjective buzzing in his occipital region, midline but radiating to the ears. The examiner commented that the buzzing was suggestive of malformation of the hemiazygos vein, but there were no corresponding bruits heard. He then observed that cerumen impactions could also cause the symptom. The examiner also noted that the Veteran was a very poor historian due to the head injury. The Veteran was again examined for review of his pension eligibility. The examiner reviewed medical records, but also noted that the history as provided by the Veteran was unreliable due to his poor memory. At the examination, the Veteran made no complaint of any tinnitus. No buzzing, ringing, or similar sounds in the ears or head generally were noted; it is unclear if the examiner specifically inquired as part of the systemic review. VA treatment records from September 2001 to February 2004 and June 2010 to August 2011 reveal no complaints or findings related to tinnitus. The associated records were printed and included in the file in April 2009, but February 2004 is the most recent treatment note. In the January 2010 rating decision on appeal, the rater specified in the evidence section that there were no current treatment records for tinnitus. In his April 2009 claim, the Veteran, apparently through his representative, stated that he was exposed to hazardous levels of noise in combat in service, and that he had experienced tinnitus since that exposure. A VA examination was conducted in December 2009; the examiner reviewed the claims file. The Veteran reported noise from small arms fire in service. As a civilian, he had worked in a lumber mill, and was a recreational shooter. The report states, "3. Tinnitus: None" under the history taken from the Veteran. Testing showed bilateral mild to moderate sensorineural hearing loss, with a conductive component. Tinnitus was not diagnosed, as the Veteran denied its presence. Based in part on this examination, service connection for hearing loss was granted, and tinnitus denied, in the January 2010 rating decision. In August 2010, the Veteran's representative filed a notice of disagreement (NOD) initiating the current appeal. The representative noted the presence of the Veteran's nonservice-connected organic brain syndrome, and asserted that this should be taken into account when considering the apparent denial of tinnitus at the December 2009 examination. The Veteran "...did not know what tinnitus is. The Veteran would however recognize what ringing in [the] ears is, if he was asked by an examiner." A new examination, to ask the question in that form, was requested. VA did provide a new examination in November 2011; the Veteran was seen, but no audiometric testing was required. The claims file was again reviewed. The examiner noted that he had been asked to ensure the Veteran understood the questioning about "tinnitus." The examiner stated that in fact at the December 2009 examination he had adhered to his regular practice of not actually using the work "tinnitus." He instead asks the Veteran is he has any ringing or other noises in their ears. It is that question the Veteran had replied "No" to at the prior examination. Nevertheless, the examiner inquired further. The Veteran stated that he had not thought about "head noises" prior to the December 2009 questioning, but after considering the matter, he stated that he does hear a mild, non-descript noise in both ears "very infrequently." He had heard it once since the prior examination, for less than one minute. It was so rare that he could not say when he first noted it, or what it could be attributed to. As there was also no indication of tinnitus in service treatment records, the examiner opined that it was less likely than not that tinnitus is related to service or service-connected hearing loss. The Board must agree with the opinion of the VA examiner, and find that a nexus between service and tinnitus is less likely than not, and hence service connection is not warranted. The first competent and credible evidence of the onset of tinnitus or similar subjectively experienced noise was in December 1971, six months after separation from service; the symptoms were associated by the examiner and the Veteran to the head injury sustained in October 1971. There was no allegation of any earlier such symptoms, and no notations of such in service treatment records. The Board is aware that the record includes the allegation, made in the initial claim, that tinnitus began in service. However, this filing is one clearly authored by the representative, and does not reflect the actual testimony and assertions of the Veteran. First, the allegation is couched closely in terms of legal argument, to include citations to legal precedent and regulations. Second, the statement is typed, with inclusion of an "x" informing the Veteran where to sign the document produced for him; the VA Form 21-526 claim form is prepared similarly. Finally, and by far most importantly, statements which are very clearly attributable solely to the Veteran, made on close questioning at VA examination, contradict the statements in the claim form. The Veteran himself stated that he did not know when his reported tinnitus began. He indicated he was not even aware of such a problem until prompted. Similarly, the representative argued in the NOD that the Veteran had been confused by the technical term "tinnitus," but the examiner in fact did not use that term with the Veteran and instead explained what he meant by the term, describing it as ringing or other "head noises." The then-representative appears to have made allegations and statements based on what was legally required or expedient, and not on the actual facts reported by the Veteran. The Board recognizes that the Veteran does have a head injury, and apparently becomes confused easily. If the adjudication hinged solely on evaluation of the Veteran's statements, that fact might well lead to a finding of equipoise regarding when tinnitus had its onset. However, the additional evidence, including the VA examinations of the 1970's and the service treatment records, weigh against the claim and tilt the preponderance of the evidence against the allegations of in-service tinnitus. The Veteran, through his representative, has argued that the combat presumption applies here, and bolsters the reports of in-service injury and onset. However, the law and regulations do not eliminate the need for evidence of a nexus; it merely reduces, for Veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."); Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed.Cir.1994); Clyburn v. West, 12 Vet.App. 296, 303 (1999). When the combat presumption applies, a "Veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir.2004). Here, there are indications of combat in service. The Veteran was a Marine rifleman in Vietnam, attached to a reconnaissance unit. However, his DD-214 includes no combat awards. A corrective DD-215 does list the Combat Action Ribbon, but troublingly that entry is at the end of the list and is in a markedly different typeface, and is spaced very differently. Regardless, though, even if combat is conceded, such does not address the lacking element of a nexus to service. Noise exposure and some in-service occurrence of tinnitus symptoms may be conceded in light of combat, but these do not show a relationship to any current tinnitus. Tinnitus is not a chronic disease under 38 C.F.R. § 3.309, and so current manifestations are not presumed related to in-service manifestations. Further, continuity of symptoms, even had it been alleged or shown, cannot offer an alternative avenue to service connection for non-listed conditions. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has provided contradictory etiology statements, and so the sole fully competent and credible opinion of record, from the VA examiner, is against the claim. In sum, although the Veteran has competently reported infrequent tinnitus symptoms, he has not clearly and credibly stated that they began in service, and the contemporaneous evidence of record indicates that symptoms arose after service in connection with a serious head injury. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for tinnitus is not warranted. ORDER Service connection for tinnitus is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs