Citation Nr: 1342880	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  12-25 174	)	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

M. C. Wilson, Counsel



INTRODUCTION

The Veteran served on active duty from September 1966 to September 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDING OF FACT

Tinnitus did not have onset during active service and was not caused by active service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims 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).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper notice must also 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 C.F.R. § 3.159(b)(1).  Proper notice from VA must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The RO provided the required notice in letters sent to the Veteran and his representative in February 2010.  An additional letter was sent in March 2012.

VA's duty to assist includes providing an examination or medical opinion when necessary, and assisting the claimant in obtaining the claimant's service treatment records (STRs) and other relevant records identified by the claimant.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In June 2010, VA provided an examination during which the examining audiologist provided an expert opinion as to whether the Veteran's tinnitus was caused by exposure to noise during active service.  The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's tinnitus, described the Veteran's claimed disability, and provided analysis to support his opinion regarding whether the Veteran's tinnitus is related to his active service.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).

VA's duty to assist in obtaining records extends only to relevant records.  "Relevant records for the purpose of § 5103A are those that relate to the injury for which the . . . [veteran] is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."  Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).  "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant."  Id. at 1323.

In the present case, VA obtained the Veteran's STRs and records of the Veteran's treatment at VA medical centers (VAMCs), which the RO has associated with the claims file.  A June 1970 report of medical examination also indicates that there may records of the Veteran's treatment for an ear infection at a private hospital, but these treatment records have not been associated with the Veteran's claims file.  There is, however, no specific reason to believe that these private treatment records contain relevant evidence.  First, the June 1970 examination report, which was conducted subsequent to the Veteran's application for entitlement to service connection for a fungal infection of the ear, indicates that the Veteran was treated for an ear infection at the hospital, not for tinnitus.  Moreover, there is no specific reason to believe that these records may give rise to pertinent information concerning the Veteran's tinnitus, as the examination report also indicates that the Veteran did not have tinnitus at the time he was examined.  For these reasons, the Board concludes that VA is not required to obtain these records because they are not relevant to the Veteran's claim of entitlement to service connection for tinnitus.

The Veteran's representative stated in a February 2012 letter that the Veteran intends to submit evidence from a physician concerning his tinnitus.  The RO included VA Form 21-4142, Authorization and Consent to Release Information to VA, in a March 2012 notice letter and instructed the Veteran to complete one form for each provider that has treated him for his claimed disability.  To date, the Veteran has neither returned a completed form nor has he provided the treatment records to supplement the evidence that is already of record.  The Board finds that neither the Veteran nor his representative have adequately identified these records and authorized VA to obtain them, and thus, VA cannot assist the Veteran by making reasonable efforts to obtain this evidence.  See 38 U.S.C.A. § 5103A(b); see also 38 C.F.R. § 20.1304 (2013).

The record does not otherwise indicate that there is any additional existing relevant evidence that is necessary for a fair adjudication of the claim that has not already been obtained and the Board concludes that it has met its duty to assist the Veteran in this case.  See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).


II.  Merits of the Claim

The Board recognizes that the Veteran applied for entitlement to service connection for tinnitus and hearing loss in December 2009, a claim which was denied by an August 2010 rating decision.  In August 2010, the Veteran timely filed a notice of disagreement concerning the denial of his claim of entitlement to service connection for tinnitus.  The RO is required to issue a statement of the case (SOC) following the submission of a notice of disagreement with a rating decision if the benefit sought has not been granted or the notice of disagreement has not been withdrawn.  38 U.S.C.A. § 7105(d)(1) (West 2002); 38 C.F.R. § 3.2600(b) (2013).  In the present case, the RO issued an SOC in August 2012.  Notwithstanding the RO's March 2012 notice letter concerning "reopening" the Veteran's claim, the August 2010 rating decision never became final because the Veteran timely initiated his appeal.  See 38 U.S.C.A. § 7105(c).  This issue is therefore on direct appeal from the initial rating decision that denied service connection for tinnitus and no "reopening" is required.

In a June 2010 VA examination, the Veteran was diagnosed with tinnitus that is as likely as not a symptom associated with his nonservice-connected hearing loss.  The Veteran, who served as a field radio repairman during service, contends that his tinnitus was caused by in-service acoustic trauma.  The preponderance of evidence shows that it is less likely than not (less than 50 percent probability) that his current tinnitus disability had onset during service or was caused by an injury during service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  "To establish a right to compensation for a present disability, 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 . . . ."  (Internal quotation marks omitted.)  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 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).

In his August 2010 notice of disagreement, the Veteran stated that he is competent to report the symptoms of tinnitus because it is within the realm of his personal knowledge, and thus, there is no reason to doubt the credibility of his reports that he has experienced symptoms of tinnitus since service.  However, the Veteran incorrectly equates competency to credibility.

"Competency . . . is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [weight and credibility] is a factual determination going to the probative value of the evidence . . . ."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Thus, while the Board recognizes that a veteran's lay testimony is competent where it is limited to that which the veteran actually observed and is within the realm of the veteran's personal knowledge; id. at 469-70; such testimony may be found to lack credibility, and will thus be afforded less weight, where it is inconsistent with other statements that the veteran has made.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.").

In the present case, the Board finds that the Veteran's statements concerning the onset of his tinnitus are inconsistent with other statements that he has made.  Namely, in the Veteran's December 2009 application for compensation, the Veteran reported that his tinnitus had onset in 1966 and that he was treated in service, and in a February 2012 letter and September 2012 Form 646, the Veteran's representative asserted that the Veteran's tinnitus began in service.

However, the Veteran's STRs are negative for any reports of tinnitus.  In an August 1969 report of medical history, which was recorded contemporaneous to the Veteran's separation from service, the Veteran reported that he never had trouble with his ears, did not have trouble with his ears at that time, and also denied having had any illness or injury other than those already noted.  This August 1969 report is inconsistent with the Veteran's statement that he began experiencing symptoms of tinnitus in service.  Moreover, a clinician noted in an August 1969 report of medical examination that a clinical evaluation of the Veteran's ears indicated that they were normal.  The only reference to the Veteran's ears in his STRs indicates that his ears were washed in July 1968.  These STRs appear complete, as they include records of the Veteran's treatment for various conditions from October 1966 to August 1969, and if the Veteran developed tinnitus during service and was treated for it, it is reasonable to expect that the STRs would include a report of such injury and treatment.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Lance, J., concurring).  There is no evidence in the Veteran's STRs to support his contention that his tinnitus was treated during service.  These records are evidence against a finding that the Veteran's tinnitus had onset during service.

Additionally, the report of a June 1970 VA examination, which was conducted after the Veteran's separation from service in September 1969, indicates that the Veteran was not experiencing tinnitus at the time of that examination.  It is of note that this examination was conducted subsequent to the Veteran's claim of entitlement to service connection for an ear disability, but the examiner reported that the Veteran's hearing was not affected and that there was no tinnitus.  It can be inferred that a comprehensive examination of his ears, as was offered in June 1970, provided to the Veteran an opportunity to inform the examiner that he was experiencing tinnitus, but the examination report indicates that the Veteran provided a report to the contrary.  This examination report is, therefore, evidence against a finding that the he has had tinnitus since service.  The Veteran's VA treatment records, dated December 2009 through May 2010, also fail to demonstrate that the Veteran's tinnitus was incurred during service.

Thus, to the extent that the Veteran now asserts that his tinnitus had onset during service and has experienced tinnitus since service, the Board assigns little probative value to these statements, as they are inconsistent with statements that he made upon separation from, and immediately following, active service.  The Board therefore affords more weight to the other evidence of record, including the June 2010 VA examination report.

In the report of the Veteran's June 2010 examination, the examiner reported that the Veteran was exposed to live fire from small arms, mortar, and artillery fire during his time in service.  Notably, this examination report also indicates that, for three years following service, the Veteran was exposed to noise at a factory where he worked.  Thereafter, he worked in home construction as a contractor, which, as per a December 2009 VAMC note, is a position he held for over thirty years.  The examiner diagnosed the Veteran with tinnitus and provided an expert opinion concluding that his tinnitus was not caused by or a result of in-service acoustic trauma because it was neither reported at the time of the Veteran's discharge from service nor shortly thereafter.

While the examiner did not explicitly lay out his journey from the facts to his conclusion that the Veteran's tinnitus is not related to his service, the Board finds that the examiner's opinion is adequate under the facts of the case.  "[E]xamination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"; Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); and must be read as a whole.  Id. at 106.  Moreover, "[a]n opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail . . . ."  D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).

In the present case, the examiner provided a detailed report which noted that: (1) the examiner reviewed the Veteran's claims file and medical records, including enlistment and discharge evaluations; (2) the Veteran reported having a history of noise exposure both during and after service; and (3) the Veteran reported that he was treated for a non-tinnitus ear condition both during and immediately following service.  When read as a whole, the report indicates that the examiner took the records and facts into account in forming his opinion that the Veteran's tinnitus was not caused by or a result of his service.

Also, while the examiner did not explicitly address postservice onset of tinnitus, 38 C.F.R. § 3.303(d) provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  As demonstrated by the foregoing discussion, the Veteran's STRs and postservice treatment records are negative for any complaints of tinnitus.  He is, therefore, not entitled to service connection for a tinnitus disability that was diagnosed postservice because the evidence is against a finding that it was incurred in service.

Notably, the record shows that there is no evidence, medical or otherwise, of the Veteran's tinnitus until he filed his December 2009 claim for compensation, which is a fact that he acknowledged in his September 2012 Form 9 and Form 646.

For the reasons explained above, the Board concludes that the preponderance of evidence is against a finding that the Veteran's tinnitus had onset during service or was caused by an event, injury, or disease during active service.  The preponderance of evidence is therefore against a finding of service connection for tinnitus and the appeal must be denied.  There is no reasonable doubt to be resolved in this case.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs