Citation Nr: 1600373 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 14-22 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Hampshire State Office of Veterans Services ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1972 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire that denied service connection for tinnitus. A Board hearing was scheduled but the Veteran failed to report. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management Systems (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA and VBMS reveals additional VA treatment records that have been reviewed by the Board. FINDING OF FACT The Veteran does not have tinnitus that is related to his military service. CONCLUSION OF LAW Tinnitus was not incurred during active military service and is not presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015). Here, the Veteran was provided with the relevant notice and information in a February 2011 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination that contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and provided opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzalez v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and law evidence of record. Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Tinnitus Element (1) of service connection requires that there be a currently disability. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). Therefore, the Veteran's report of current tinnitus, which the Board finds credible, is deficient to establish a current disability. Element (2) of service connection requires in-service incurrence of the condition. Although the October 1977 separation examination was normal and the service treatment records were negative for tinnitus, the Veteran contends that his hearing was damaged as a result of his naval service in the Vietnam War where he was assigned to Gun Mount 32 and tasked with refueling ships in the Gulf of Tonkin. The Veteran alleges that he suffered injuries to his ears due to noise exposure and lack of hearing protection. See July 2011 Notice of Disagreement. Fast Letter 10-35 outlined a listing of military occupational specialties (MOS) that have high probabilities of hazardous noise exposure. While the Veteran's MOS of water transport is not on this list, military noise exposure was conceded by the RO in the May 2014 Statement of the Case. Therefore, element (2) is met. Element (3) of service connection requires a nexus because the current condition and the Veteran's military service. The Veteran was examined by VA in June 2012 for tinnitus. The examiner noted review of the service treatment records and claims file. Service treatment records show hearing which was well within normal limits at the time of separation. The service treatment records are also silent for any complaints of tinnitus or auditory dysfunction. The examiner noted that the Veteran also reported a 20 year history of occupational noise exposure in the form of being around grinders and chippers without wearing hearing protection. Based on this evidence, the examiner opined that it was less likely than not that the Veteran's condition was caused by or a result of military noise exposure. A medical opinion must support its conclusion with an analysis the Board can consider and weight against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only date and conclusions is accorded no weight). In this regard, the June 2012 VA examiner reviewed the relevant records, examined the Veteran, and provided a medical opinion with rationale and reasoned analysis. To the extent that the Veteran has attributed the etiology of his tinnitus to service, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, linking tinnitus to noise exposure in service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that tinnitus is an organic diseases of the nervous system, and is therefore a "chronic" condition. See 38 C.F.R. § 3.309(a) ; see also Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (tinnitus is an organic disease of the nervous system). Claims for chronic conditions listed in 38 C.F.R. § 3.309(a) benefit from a somewhat more relaxed evidentiary standard. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b) . In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The requirement of showing a continuity of symptomatology after service is a "second route by which an appellant can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Significantly, a showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology." Id. The Board has considered the Veteran's statements that he experienced tinnitus during his period of service and ever since. However, as discussed above, an October 1977 separation examination noted normal hearing, and there were no complaints from the Veteran of tinnitus at the time. Notably, the Veteran was treated for several conditions during service, including a foot rash, nasal congestion, nausea and headaches, left eye problems, and problems with the small finger on his right hand. The Veteran also filed a claim for VA service-connected disability benefits in November 1977, immediately after his discharge from service. Although he filed claims for several disabilities, tinnitus was not among them. This evidence strongly suggests that he was not experiencing tinnitus during service or at the time he filed these initial claims, as he appears to have reported many problems he had during service, and conditions he believed to be related to service, but did not report tinnitus. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board finds his recent assertions of continuous symptoms to be less credible than these contemporaneous records. Therefore, a credible continuity of symptomatology has not been established. There is no other evidence of record, specific to the Veteran's case, which links the Veteran's current tinnitus to his period of military service. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim and that doctrine is thus, inapplicable. Accordingly, service connection for tinnitus is denied. 38 U.S.C.A. § 5107 (b). ORDER Service connection for tinnitus is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs