Citation Nr: 1341379	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  12-19 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine



THE ISSUE

Entitlement to service connection for tinnitus.  



REPRESENTATION

Appellant represented by:	Maine Veterans' Services



ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel




INTRODUCTION

The Veteran served on active duty from June 1969 to January 1972.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran indicated in his July 2012 VA Form 9 that he wished to testify at a hearing.  VA scheduled a hearing for September 2012 and notified the Veteran in a letter dated August 2012.  However, in September 2012 the Veteran notified VA that he wanted to cancel the hearing.  Therefore his request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2013).  

The Board notes that while the Veteran's appeal was pending, one of his claims was granted in the field.  Specifically, in a February 2013 decision, the RO granted service connection for posttraumatic stress disorder (PTSD).

The Board further notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals documents that are either duplicative of the evidence in the claims file or irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's tinnitus is not causally related to his military service.  


CONCLUSION OF LAW

The Veteran's tinnitus was not incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided prior to an initial unfavorable RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The Board notes that although the Veteran was not provided with a formal VCAA notice letter after submission of his claim, he had actual notice of the requirements because the February 2012 rating decision made reference to these requirements and subsequent adjudications in June 2012 and February 2013 enumerated in detail the requirements for service connection.  Moreover, the Veteran was represented by Maine Veterans' Services, a veteran's service organization experienced in handling service-connection claims.  Thus, there is no prejudice to the Veteran in proceeding with adjudication of the instant claim.

The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The record reflects that all pertinent available service treatment records and all other available post-service evidence identified by the Veteran have been obtained.  The Veteran's written statements are also of record.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim.  

VA also satisfied its duty to obtain a medical opinion when required, providing the Veteran with examinations for tinnitus in February 2012 and September 2012.  As analyzed below, the Board finds that the September 2012 examination was adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A.  §§ 5103(a), 5103A; or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. 

Legal Principles

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a veteran must show: "(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-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after service 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).

Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection if such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

In a December 1968 entrance examination, the examiner noted normal ears. Audiometric testing revealed the following: 

Puretone Threshold


500
1000
2000
3000
4000
Right
0
-5
-5
-
0
Left
-5
-5
5
-
10

In a December 1971 separation examination, the examiner noted normal ears and the Veteran reported he was in "good health."  No complaints of tinnitus were noted.  Audiometric testing revealed the following: 

Puretone Threshold


500
1000
2000
3000
4000
6000
Right
5
10
5
5
10
30
Left
15
10
5
15
10
15

In a December 2010 private treatment record for PTSD, the Veteran reported that he worked in Vietnam for 18 months as a refrigeration mechanic and that although he was never exposed to combat, he would often hear that a site he had recently visited was later overrun and people there were killed.  He noted that he felt fortunate that he was never "at the wrong place at the wrong time."

In a tinnitus questionnaire submitted in conjunction with the Veteran's September 2011 claim for tinnitus, the Veteran reported that before entering military service he was enrolled in a college or trade school; that during service he worked as a heating and cooling technician; and that after service he worked as a furnace technician for six months, a home applicant repairman for 28 years, and a school bus driver and janitor for ten years.  He claimed that while in service, he had been exposed to loud noises from working eight to twelve hours a day while exposed to air conditioner and generator noises.  The Veteran also claimed that he had been exposed to helicopters and diesel trucks that were used to transport the Veteran and his equipment to different work sites while in Vietnam.  He further noted that while moving between bases, he had been exposed to incoming fire and that working as a grenadier and firing his weapon exposed him to loud noises.  Finally, he stated that he had had no recreational noise exposure before, during or after service. 

In a February 2012 VA examination for tinnitus, the examiner noted that the Veteran had constant bilateral tinnitus.  The examiner also conceded that it was highly probable that the Veteran's in-service work with air conditioners and artillery exposed him to loud noises.  However, she opined that it was less likely as not that his current tinnitus was caused by or related to his in-service noise exposure because his hearing at both enlistment and separation was within normal limits.  She further noted that even though there was a mild loss upon separation at 6000 Hertz (Hz), that frequency had not been tested at entrance so it was unclear whether or not it was due to his service.  Moreover, she stated that at the examination the Veteran had said that his tinnitus onset about 10 years after service and there was no evidence of a specific in-service incident resulting in an onset of tinnitus.  

In a September 2012 statement, the Veteran's representative requested another examination because he asserted that the February 2012 examiner had misunderstood the Veteran.  According to the Veteran's representative, the Veteran had stated that he experienced constant recurrent tinnitus beginning ten years after service but that he had experienced recurrent tinnitus both in service and after service.  Thus, the representative argued, because the examiner believed that the Veteran's tinnitus onset about ten years after service, the opinion was inadequate.

In September 2012, the Veteran was provided with another VA examination for tinnitus.  The same examiner again opined that the Veteran's tinnitus was less likely than not related to his military noise exposure because there was no objective evidence of a noise injury in service.  Moreover, even though he claimed he had experienced recurrent tinnitus both during and after service, "the occasional presence of brief spontaneous tinnitus is a nearly universal sensation and a normal phenomenon."

Although the Veteran has a current diagnosis of bilateral tinnitus, the preponderance of the evidence weighs against a finding that it is related to his active service.  The Board will address the elements of service connection in turn.   

First, the February 2012 VA examination shows that the Veteran currently has bilateral tinnitus, as a diagnosis is noted there.  Moreover, the Veteran asserts a number of times that he currently experiences tinnitus.  Tinnitus is a subjective disorder and a diagnosis can be based on the lay testimony of the Veteran.  Charles v. Principi, 16 Vet. App. 370, 347 (2002).  Thus, the Veteran has current tinnitus.

In the September 2011 tinnitus questionnaire, the Veteran stated that while moving between bases in service, he had been exposed to incoming and direct fire.  The provisions of 38 U.S.C.A. § 1154(b) provide that, in the case of a veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d). 

Here, the Veteran's lay statements potentially conflict.  In the December 2010 private treatment record for posttraumatic stress disorder, the Veteran stated that he was never exposed to combat and that he felt fortunate that he was never "at the wrong place at the wrong time."  In contrast, the Veteran's assertion that he was exposed to incoming and direct fire appears in the September 2011 tinnitus questionnaire-a document submitted with his claim for service connection.  A statement made for purposes of medical treatment is entitled to more probative value than a statement made for compensation purposes.  Harvey v. Brown, 6 Vet. App. 390, 394 (1994).  Thus, the Board finds the Veteran's statement that he was never in combat more probative than his statement that he was exposed to incoming fire.  Moreover, his DD-214 appears to confirm such a conclusion since it shows that although he received a National Defense Service Medal, a Vietnam Service Medal, a Vietnam Campaign Medal, a Marksman Badge (M-14 rifle) and an Expert Badge (grenade), he did not receive a medal typically awarded for combat.  Therefore, the Board finds that the Veteran did not technically engage in combat as it is defined and is therefore not entitled to the combat presumption.  38 C.F.R. § 3.304(d).  It is noted that he may have been in the area of incoming fire, and as noted, acoustic trauma has been conceded in any event.

The Veteran asserts that he has experienced recurrent tinnitus since service and that his current tinnitus is related to his in-service noise exposure.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown 7 Vet. App. 36, 39-40 (1994).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board notes that the Veteran is competent to diagnose tinnitus. Charles, 16 Vet. App. at 347.  However, the Board is still entitled to weigh the credibility of the assertion that it began in service and continued after service.  Layno, 6 Vet. App. at 469.  

Here, the Veteran's separation examination did not show any complaints of tinnitus, and the Veteran reported that he was in "good health."  Although the separation examination did show mild hearing loss in the right ear at 6000 Hz, that frequency was not tested at entrance so it is unclear whether it was related to service.  Hearing loss in the conversational range was not shown.  Further, hearing loss and tinnitus are separate disorders so even if the Veteran could show that hearing loss was incurred in service, it could only serve as circumstantial evidence that tinnitus may have begun in service.

More significant is the fact that the Veteran did not seek treatment for his tinnitus or file a claim for service connection until about 40 years after leaving service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).  He separated from service in 1972; the first complaint of tinnitus appears in the September 2011 claim.  

Therefore, although the Board concedes that it is likely that the Veteran had in-service noise exposure, the claim that he had recurrent tinnitus in-service which continued after service is generally inconsistent with the other evidence of record.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board therefore affords the Veteran's lay statement little probative value.  

Moreover, the September 2012 VA examiner provided a negative opinion even after granting the Veteran the full benefit of the doubt by assuming that she had misunderstood him in the February 2012 VA examination.  The September 2012 examiner assumed that the Veteran had in-service noise exposure and experienced intermittent tinnitus in service and after service; however, she still opined that it was less likely as not that the Veteran's tinnitus was related to his service.  She noted that there was no objective evidence of a noise injury in service and even though he claimed he had experienced recurrent tinnitus both during and after service, "the occasional presence of brief spontaneous tinnitus is a nearly universal sensation and a normal phenomenon."  Because the examiner reviewed the whole record, fully considered the Veteran's lay statements, and provided a fully-supported opinion, the Board finds that the opinion was adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  For the same reasons, the Board affords the September 2012 opinion significant probative value.  

Therefore, the Board finds that the Veteran's tinnitus is not causally related to his military service.  Weighing the Veteran's assertions against the separation examination, the substantial time gap between the alleged onset of symptoms and a complaint of tinnitus, and the negative VA opinion, the Board finds that although the Veteran's lay assertions carry some probative value, they are outweighed by significant medical evidence to the contrary.  Therefore the claim is denied.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49.


ORDER

Entitlement to service connection for tinnitus is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs