Citation Nr: 1434167	
Decision Date: 07/31/14    Archive Date: 08/04/14

DOCKET NO.  11-26 148	)	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

K. K. Buckley, Counsel







INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from July 1974 to January 1975 and on active duty from July 1976 to November 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim.

A review of the record shows that a September 2013 statement of the case (SOC) determined that the Veteran does not have qualifying service for basic entitlement to a nonservice-connected pension.  The Veteran did not perfect an appeal of that denial and the decision, therefore, became final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2013).  Accordingly, the issue of entitlement to a nonservice-connected pension is not in appellate status and will be addressed no further herein.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a SOC is issued by VA).


FINDING OF FACT

The Veteran does not have tinnitus that is attributable to his military service.


CONCLUSION OF LAW

The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2013); 38 C.F.R. § 3.159(b) (2013).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (April 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

In this matter, a notice letter in May 2010 complied with VA's duty to notify the Veteran.  In particular, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  In the May 2010 letter, the Veteran was also notified of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board additionally finds VA has satisfied its duty to assist the Veteran in the development of his tinnitus claim.  Relevant in-service and post-service treatment records are contained in the claims file.

There is no indication that any additional action is needed to comply with the duty to assist.  In July 2010, the Veteran was provided with a VA examination, the report of which is of record.  The examination report contains sufficient evidence by which to decide the claim; this report addresses the etiology of the Veteran's tinnitus.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the VA examination report is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In short, the Board has considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with said provisions.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). 

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Here, the Veteran asserts entitlement to service connection for tinnitus, which he contends is due to his military service.  See, e.g., the Veteran's claim dated May 2010.

As indicated above, the Veteran served on active duty for training (ACDUTRA) from July 1974 to January 1975 and on active duty from July 1976 to November 1976.  The Veteran's STRs, including his October 1976 separation examination, are pertinently absent any complaints of or treatment for tinnitus.

The Veteran has not claimed that he was diagnosed with tinnitus in service, or sought in-service medical treatment for complaints related to acoustic trauma.  He has contended that he was exposed to loud noise from active firing ranges and track vehicles.  See, e.g., the Veteran's statement dated May 2010.  Specifically, he stated that, in his military occupational specialty (MOS) of stock clerk, he was responsible for delivering supplies to firing ranges and operate track vehicles.  He also stated that as the armorer for the unit, he had to fire every weapon.  Id.  As the Veteran's contentions of in-service noise exposure are consistent with his MOS, the Board has no reason to disbelieve the Veteran's assertions.  Thus, noise exposure as contended by the Veteran is conceded based on the circumstances of his military service.  38 U.S.C.A. § 1154(a).
The Veteran was afforded a VA examination in July 2010 at which time the examiner noted that the Veteran experiences moderate, bilateral, periodic humming tinnitus of unknown onset and etiology that goes away when the Veteran slaps his ear.  The examiner also noted the Veteran's "minimal history of unprotected exposure to hazardous military noise."  The examiner additionally reviewed the Veteran's post-service treatment records, which do not document any complaints or diagnoses of tinnitus.  The examiner noted that during the examination, "[t]he Veteran did not associate his tinnitus with the military service."  The examiner then concluded, "[t]he records revealed medical consultations but tinnitus was not one of the complaints, therefore it is less likely than not that his tinnitus is service connected."

When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions.  A medical opinion that contains only data and conclusions is not entitled to any weight.  Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from.  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

As indicated above, upon reviewing the medical and lay evidence the July 2010 VA examiner determined it was less likely than not that the Veteran's currently diagnosed tinnitus is related to his military service.  The July 2010 VA examination report was based on review of the Veteran's medical history and interview of the Veteran; the Board therefore places significant weight on the findings of the July 2010 VA examiner.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").
The Veteran has not submitted a medical opinion to contradict the conclusion of the July 2010 VA examiner.  As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim.  He has failed to do so.  See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits).  The Court has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The Board has considered the Veteran's assertions that he has had tinnitus since his active service.  Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the Veteran never complained of tinnitus in service and his separation examination was negative for pertinent abnormality.  On the Report of Medical History, the Veteran identified current and past medical problems but denied current or past ear problems or hearing difficulties.  The Board finds it likely that if tinnitus was present at the time, he would not have denied auditory problems.  There is no claim or showing that tinnitus was identified by a clinician prior to his claim for compensation.  The initial mention of tinnitus is when the Veteran filed his claim for compensation (seeking compensation and not treatment) approximately 30 years after his last period of service.  The Board finds that the reported history of continued symptoms dating from active duty are inconsistent with the Report of Medical History prior to service separation, and is less convincing than the clinical evidence of record.  In fact, aside from the July 2010 VA examination report, there is no tinnitus symptomatology documented in the entirety of the medical record.  Moreover, the July 2010 VA examiner's opinion, which was based in part on the Veteran's history, is more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began.

The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise.  Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value.  Accordingly, the preponderance of the evidence is against this service connection claim.


ORDER

Entitlement to service connection for tinnitus is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs