Citation Nr: 1542739 Decision Date: 10/05/15 Archive Date: 10/13/15 DOCKET NO. 13-16 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from June 1966 to June 1968, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran was afforded a videoconference hearing before the undersigned in February 2014. A transcript of that hearing has been associated with the record. After the RO issued a May 2013 statement of the case, and after the appeal was transferred to the Board, additional evidence was added to the record that was pertinent to the appeal. The Veteran provided a waiver of review by the AOJ at his hearing in February 2014. Therefore, appellate review may proceed. See 38 C.F.R. §§ 19.37, 20.1304 (2015). FINDINGS OF FACT 1. The Veteran's tinnitus was not "chronic" during service. 2. The Veteran's tinnitus was not productive of symptoms continuously since service. 3. The Veteran's tinnitus was not manifest to a compensable degree within one year of his separation from service. 4. The Veteran's tinnitus is not the related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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). Here, the duty to notify was satisfied by way of a March 2011 letter sent to the Veteran that fully addressed all notice elements and was sent prior to the initial April 2012 rating decision. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining service treatment records and VA and private medical records, and providing the Veteran with a VA examination in March 2012. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. As previously discussed, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in February 2014. The record reflects that at the hearing, the undersigned set forth the issues to be discussed, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) during the hearing, nor have they identified any prejudice in the conduct of the hearing. Therefore, to any extent the undersigned did not comply with the duties under § 3.103(c)(2), the Board finds such error was harmless. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim on appeal. 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). II. Service Connection The Veteran contends that he has tinnitus as the result of in-service noise exposure. Specifically, he noted that he was an ordinance officer in-service, which exposed him to constant engine and shop noise. He also reported that he was exposed to rifle, machine gun, and cannon fire. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. 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). Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has testified that he has tinnitus. He has been diagnosed with tinnitus at a March 2012 VA examination. The Board concludes that the current disability element has been met. Shedden, 381 F.3d at 1167. The Veteran is competent to report exposure to loud noises. His service personnel records indicate that he had training in ordnance and mechanical maintenance and that his military occupational specialty was as a mechanical maintenance officer. The Board finds that exposure to loud noise would be consistent with the conditions of such service. 38 U.S.C.A. § 1154(a). The Board concludes that the in-service incurrence element has been met. Shedden, at 1167. The controversy in this case is whether the Veteran's current disability may be related to service. The Board will address applicable presumptions before addressing direct nexus to service. a. Presumptive Service Connection Other organic diseases of the nervous system, including tinnitus where there is evidence of acoustic trauma, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and compensable manifestations within one year of the appellant's separation from service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309 (2015). The Veteran has not alleged and the record does not otherwise suggest that he has medical education, training, or experience. The Board finds that he is a lay person for the purposes of this appeal. 38 C.F.R. § 3.159(a). Lay persons are generally competent to report ringing in the ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, the Board finds that his account of tinnitus is not of sufficient credibility to establish that his tinnitus was "chronic" during service, productive of symptoms continuously since service, or manifested to a degree of 10 percent within the first year of his separation from service. The evidence in favor of tinnitus shown as "chronic" during service consists of the Veteran's March 2014 testimony. The Veteran reported that he thought the onset of his tinnitus went back to the time when he was in Vietnam and tested M40 dusters, 50 caliber machine guns, and M60/30 caliber machine guns. He additionally stated that he worked for an ordinance company who repaired these weapons and occasionally fired them to make sure they worked. He also reported that while in Teham, near the Cambodian border, he was exposed to a lot of 175 millimeter Howitzers fired in the night for about two months. He stated that he remembered ringing in his ears after test firing M40 dusters. The Veteran reported that he did not use any hearing protection, and that it was not part of the uniform like it was in the Guard. Further, when questioned about the constancy of his tinnitus after service, the Veteran stated that his recollection was not clear on that particular question, but he remembered his ears ringing after the M4 duster firing. He also noted that there was ringing more on an occasional basis than a constant basis. The Veteran stated that the ringing was constant now and had been for quite a while. He noted that this all came up when discussing hearing loss for hearing aids. Even where competent, the Board must assess the credibility of the evidence. For the reasons that follow, the Board finds the Veteran's testimony to be of low credibility. Importantly, the Veteran has admitted to imprecise memories about his tinnitus. As mentioned, the Veteran testified to not having clear memories about the constancy or onset of his tinnitus at the March 2014 hearing. Similarly, at a March 2012 VA examination, the Veteran reported recurrent tinnitus. He said that the date of onset of his tinnitus was unknown, but possibly 10, 15, or 20 years ago. The examiner noted that, when he asked the Veteran if he had tinnitus when he got out of the Army, the Veteran stated that he did not remember when his tinnitus began, so he would say no. Given the Veteran's admittedly vague memories about when his tinnitus began, the Board finds that the nearly forty year separation between service and the first report of tinnitus in or even related to service reduces the credibility of the Veteran's assertions. Even without intent to deceive, the length of time which elapses from an event to its report reduces the reliability of the report due to the fallibility of human memory. See generally Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). As a result, the Board affords his statements minimal probative value. The remaining evidence does not support a finding that the Veteran's tinnitus was "chronic" during service, productive of symptoms continuously since service separation, or manifest to a compensable degree within one year of service separation. Service treatment and personnel records, private and VA treatment records, and the March 2012 VA examination report do not support the existence of tinnitus during, continuously since, or presence within one year of service separation. Given the low credibility of the Veteran's statements and the absence of other favorable evidence, the Board finds that the Veteran has not sufficiently supported his claim to the level of equipoise with evidence demonstrating that tinnitus was chronic during, continuously symptomatic since, or manifest within one year of separation from service. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.102. As such, the Board concludes that presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2015). b. Direct Nexus Finally, the Board considers whether, on the basis of all pertinent medical and lay evidence, the evidence demonstrates a nexus between the claimed in-service disease or injury and the present disability. Shedden, at 1167. The Board finds the Veteran's lay assertions that his tinnitus is due to in-service noise exposure not to constitute competent nexus evidence in this case. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). However, the competency of lay testimony depends on the nature of the condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Lay evidence is generally competent when a matter falls inside the realm of common knowledge of a lay person, reporting a contemporaneous assessment by a medical professional, or when describing symptoms which supports a later diagnosis by a medical professional. Id., at 1377. The Board notes that: Sensorineural hearing loss, such as from presbycusis or acoustic trauma, is the most common cause of tinnitus. However, the etiology of tinnitus often cannot be identified, because there are so many potential causes that it is impossible to select one. In addition to sensorineural hearing loss, other known causes are Meniere's disease, head injury (including traumatic brain injury) otosclerosis, cerebrovascular disease, neoplasms, numerous types of ototoxic medications, hypertension, kidney disease, dental disorders, and many other medical conditions. Fountain, 27 Vet. App. at 267 (citing VA Training Letter 10-02 at 4-5). When read in context, the Training Letter indicates that even medical professionals may not be able to identify the etiology of tinnitus in a given case. Considering that common lay knowledge is, by definition, lesser than medical knowledge, the Board finds that the etiology of tinnitus is outside the realm of common lay knowledge because even medical knowledge may be insufficient to determine an etiology. Moreover, the Veteran has not reported that a medical professional has told him that his tinnitus is related to in-service noise exposure. Finally, the remaining evidence of record does not contain a medical assessment, relying on the Veteran's lay statements, that relate his tinnitus to an in-service event, injury, or disease. As such, the Board finds that the Veteran's lay assertions are not competent to establish nexus in this case. See Kahana, 24 Vet. App. at 435. The remaining evidence does not support a relationship to service. The Veteran's service treatment records do not contain any complaints or diagnosis of ringing in the ears/tinnitus. On the May 1968 Report of Medical History, the Veteran reported ear, nose, or throat trouble. The examiner noted that the Veteran had a history of otitis external/swimmer's ear. On the Veteran's 1968 separation examination, the examiner noted the Veteran's ears were normal and no diagnosis of tinnitus was noted. Private treatment records note that in November 2000, Veteran reported tinnitus, particularly on the left side. The Veteran was recommended for a hearing aid trial at that time. An audiogram taken that day noted that the Veteran had loud, constant tinnitus. As mentioned, the Veteran was afforded a VA examination in March 2012. The examiner concluded that the Veteran had a diagnosis of clinical hearing loss, and tinnitus was at least as likely as not a symptom associated with his nonservice-connected hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The Board notes that this opinion is consistent with VA Training Letter 10-02, which indicates that sensorineural hearing loss is the most common cause of tinnitus. See Fountain, at 267. The Board notes that service connection for bilateral hearing loss was denied in the same rating decision which denied service connection for tinnitus. The Veteran disagreed only with the denial of service connection for tinnitus. The rating decision is now final as to the denial of service connection for bilateral hearing loss. In the absence of an attempt to reopen or to attack the rating decision collaterally as to the hearing loss issue, the Board finds that the bilateral hearing loss is not a service-connected disability. The VA examiner's opinion is based on review of the claims folder, including the Veteran's service and post-service treatment records, interview and examination of the Veteran. The VA examiner offered an opinion with a rationale for the opinion that is understandable in light of the pertinent medical principles as explained in Training Letter 10-02. The Board finds this opinion to be highly probative in determining whether service connection for tinnitus is warranted. In light of the foregoing, the Board finds that the preponderance of the evidence demonstrates that the Veteran's tinnitus is not related to an in-service event, injury, or disease. The Board concludes that service connection is not warranted on a direct basis. Shedden, at 1167. There being no remaining potentially applicable alternative theories of entitlement, the Board concludes that the criteria for service connection have not been met. In reaching the decision above the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for tinnitus, the doctrine is not for application. 38 C.F.R. § 3.102. The Veteran's claim of entitlement to service connection for tinnitus must be denied. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ J.B. FREEMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs