Citation Nr: 1517260 Decision Date: 04/22/15 Archive Date: 04/24/15 DOCKET NO. 13-19 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased initial compensable evaluation for hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1970. This matter come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the claimed disability. In June 2013, the Veteran notified the Board that he did not want a Board hearing. The issues of entitlement to an increased disability rating for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Tinnitus was not first manifested during active service, and any current tinnitus is not related to injury, disease, or other event in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided a notice letter to the Veteran in September 2011, prior to the initial adjudication of the instant claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claims. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is harmless and nonprejudicial to the Veteran. The Board further finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained and VA medical records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. The Veteran underwent a VA examination in November 2011 to obtain medical evidence regarding the nature and etiology of the claimed disability. The Board finds the VA examination adequate for adjudication purposes. The examination was performed by an audiologist based on a review of the claims file, a solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. The examination report is accurate and fully descriptive. An opinion is provided as to whether the claimed disability is related to the Veteran's service or service-connected disability. As such, the Board finds that the Veteran has been afforded an adequate examination. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the claimed disability has been met. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, so no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Pertinent Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Service connection requires competent evidence showing (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be granted for certain chronic diseases, including organic diseases of the nervous system, such as tinnitus, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, No. 13-0540, 2015 WL 510609, * 12 (Feb. 9, 2015) (holding that tinnitus is chronic disease under 38 U.S.C.A. § 1101 (West 2024); 38 C.F.R. § 3.309(a) (2014). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a Veteran's nonservice-connected disability by a service-connected disability, such Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he incurred tinnitus as a result of noise exposure during service while serving in the Army. The Veteran asserts that he was exposed to high frequency noise during service, and that he has service-connected for bilateral hearing loss. See the March 2012 statement; June 2013 VA Form 9. There is competent evidence that the Veteran has current tinnitus. Tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1930 (32nd ed. 2012). Thus, due to its inherently subjective nature, tinnitus is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a Veteran is competent to testify as to the presence of tinnitus); Jandreau, 492 F.3d at 1376-77. Accordingly, the Board finds that the threshold element for service connection, having a current disability, has been established. The Board finds that there is competent evidence of in-service noise exposure. The Veteran's DD 214 indicates that he was a helicopter and airplane pilot, and that he received an Army aviator badge and air medal. The Veteran is competent to report such a history of acoustic trauma, which lies within the realm of his experience. See Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). The Board, however, finds that the Veteran's statements regarding the cause or onset of his tinnitus to lack the credibility necessary to afford them significant probative value. His statements have been inconsistent and vague regarding his tinnitus. The STRs do not document any complaints, symptoms, or findings of tinnitus. The December 1970 separation examination indicates that the Veteran denied having ear trouble. Post service medical evidence does not document any complaints of tinnitus until the November 2011 examination. A June 2008 VA audiological examination indicates that the Veteran did not have a history of tinnitus and that there was no subjective tinnitus. Moreover, both the June 2008 and November 2011 VA examiners reported that after discharge from active service, the Veteran was exposed to helicopter and weapons noise for 6 years as a civilian police officer, and he used power tools, rifles, and guns recreationally. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). Here, the Veteran has stated that his tinnitus was due to service, but he did not mention it in his separation examination in 1970. The earliest mention of tinnitus by the Veteran was in 2011 when he filed a disability compensation claim, over 40 years after discharge from service. Most significantly, the Veteran affirmatively denied a history of tinnitus during the June 2008 VA examination and during the November 2011 VA examination he explained that he could not determine the time of onset. In light of the inconsistencies, the Board finds that the Veteran's lay assertions alone are not sufficient to establish tinnitus in service and since service. The Board finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time. The STRs indicate that the Veteran specifically denied having ear trouble. The December 1970 service separation examination report shows that the Veteran denied having any ear trouble. The Board finds that the service medical evidence, the Veteran's own statements generated at the time of service, and the lack of complaints, treatment, or diagnosis of tinnitus in the medical evidence of record for more than 40 years after service outweigh the Veteran's own lay statements that he made in connection with his claim for service connection for tinnitus. There is also competent and credible medical evidence that the Veteran's current tinnitus is not related to service. In the November 2011 VA examination, the Veteran reported that he could not determine the time of onset of the tinnitus, and that he experienced it 2 or 3 times per month, lasting for 10 minutes. He described the tinnitus as a "swishing" sound that is moderate in severity. The examining audiologist opined that the tinnitus was less likely than not caused by or a result of military noise exposure, and that the tinnitus was also less likely than not a symptom associated with the Veteran's hearing loss. The audiologist explained that the Veteran's brief and occasional tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with hearing loss. The examiner also stated that the Veteran's bilateral hearing was within normal limits in his December 1970 separation examination, and only seldom does noise cause a permanent tinnitus without also causing hearing loss. Moreover, there was no evidence of any onset or aggravation of hearing loss in service, there was no objective evidence of the onset of tinnitus in service, and the Veteran's brief and occasional tinnitus is inconsistent with the more recurrent and pervasive tinnitus typically associated with noise exposure. The examiner concluded that a nexus could not be established, and therefore the tinnitus was less likely as not caused by or a result of in-service noise exposure, and more likely due to other etiologies such as aging, occupational noise exposure, recreational noise exposure, usage of potentially ototoxic medication, and caffeine. Neither the Veteran nor his representative have produced a medical opinion to contradict the conclusions of the VA audiologist. As such, there is no competent medical evidence that relates the current tinnitus to military service. To the extent to which the Veteran asserts his tinnitus is related to his service-connected hearing loss the Board notes that the Veteran is in receipt of service connection for hearing loss. The remaining question is whether the tinnitus was caused or aggravated by the hearing loss. As noted above, however, the VA examiner opined that the brief and occasional tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with hearing loss. Furthermore, the examiner attributed the tinnitus to aging, occupational and recreational noise exposure, use of potentially ototoxic medication and caffeine. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for tinnitus. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for tinnitus is denied. ORDER Service connection for tinnitus is denied. REMAND A February 2012 RO decision implemented the Board's grant of hearing loss and assigned a noncompensable evaluation. In a March 2012 statement, the Veteran submitted a notice of disagreement (NOD) with the February 2012 RO decision concerning the noncompensable evaluation. 38 C.F.R. § 20.201. An SOC is required when a claimant protests a determination. 38 C.F.R. §§ 19.26, 19.29. To date, no SOC has been furnished in response to the Veteran's timely NOD, or at least no SOC has been associated with the claims file (physical or paperless) that is now before the Board. Therefore, remand is required for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Issue an SOC addressing the issue of entitlement to an increased initial compensable evaluation for hearing loss. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b) (2014). If, and only if, the Veteran timely perfects an appeal as to that issue, return the matter to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs