Citation Nr: 1339722 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-30 580A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran first reported experiencing tinnitus in 2010, approximately 38 years after his discharge from service. 2. The only medical opinion of record fails to relate the Veteran's tinnitus to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an October 2010 letter, sent prior to the decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his service connection claim and establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Relevant to the duty to assist, the Veteran's service treatment records (STRs), VA treatment records, VA examination report, and private treatment records have been obtained and considered. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in June 2011 in conjunction with the claim on appeal. The Board finds that the examination is adequate as it was performed by an audiologist and includes an interview with the Veteran, record review, and physical examination. Moreover, the examiner provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See 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 at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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); Jandreau. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his tinnitus began in service as a result of exposure to excessive noise, and has continued to the present. Therefore, he claims that service connection is warranted for such disorder. In both the July 2011 rating decision and October 2012 statement of the case, VA conceded that the Veteran was exposed to acoustic trauma in service. The Board concurs with this finding, as it is consistent with his military occupational specialty of turbine engine repairman. The Veteran also has a current diagnosis of tinnitus. Specifically, the VA examiner diagnosed recurrent infrequent tinnitus. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to his in-service noise exposure. The earliest documentation of the Veteran's tinnitus is in his original claim application, dated October 2010. In that document, the Veteran stated that his tinnitus began in 1971 in service. The Veteran reported to the VA examiner that his tinnitus was recurrent and infrequent (a year could pass without any symptoms) with episodes of varying duration. The VA examiner diagnosed tinnitus and acknowledged that the Veteran had noise exposure in service. However, he found that "the frequency (can go an entire year without an episode of tinnitus) is not typical of tinnitus resulting from military related acoustic trauma." Therefore, he concluded that the Veteran's tinnitus was less likely than not a result of his military noise exposure. The Board finds that this medical opinion is probative, as it was rendered after an examination of the Veteran and review of the Veteran's claims file and is supported by a sufficient rationale. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The examiner's medical opinion is also consistent with the evidence of record which reflects that the Veteran first reported tinnitus in 2010, approximately 38 years after service. Moreover, during his VA examination, the Veteran did not specifically relate the onset of his tinnitus to his military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board notes that the Veteran contends in lay statements that his tinnitus began during service. On his original claim application, the Veteran provided an onset date of 1971 for his tinnitus and stated that as a turbine engine repairman, he worked constantly on the flight lines for 18 months in Vietnam with no hearing protection. "The tinnitus began at that time and continues to this day, being intermittent in nature." The Veteran's service treatment records are negative for complaints of tinnitus. Nevertheless, he is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). However, there is inconsistency between the Veteran's claim application and the evidence of record. His June 1971 separation examination, April 1972 enlistment examination for the National Guard, and June 1972 reenlistment examination all showed normal ears. On subjective Reports of Medical History dated in June 1971 and June 1972, the Veteran checked "No" next to the question "Have you ever had or have you now ear, nose or throat trouble?" These reports are inconsistent with the Veteran's 2010 claim that his tinnitus had its onset in 1971. This inconsistency leads the Board to find his lay evidence less probative than the VA examiner's opinion. Taken together with a failure to report tinnitus for 38 years after service, the Board determines that the Veteran's report of experiencing tinnitus continually since service is not probative. The lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a Veteran's lay evidence; however, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan. As such, while the record is negative for post-service treatment for the Veteran's tinnitus, that alone does not render not credible his statements that he has ringing in his ears since his military service. In this case the Board has found that the Veteran's lay statements are not probative due to inconsistency with the other evidence of record. Caluza. The Board finds that the Veteran's report of experiencing tinnitus continually since service is not credible. In sum, based on the probative negative nexus medical opinion and the Board's determination that the Veteran's report of experiencing tinnitus continually since service is not probative, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs