Citation Nr: 1648410 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 16-06 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona. THE ISSUES 1. Entitlement to service connection for a chronic headache disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1954 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a chronic headache disability that had its onset in his service or that is otherwise etiologically related to his service. 2. The preponderance of the evidence fails to establish the Veteran has tinnitus as the result of a disease or injury in active duty, to include in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic headache disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time, or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, the Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran, nor his attorney, has alleged prejudice with regard to notice. In light of the foregoing, nothing more is required. The Board also finds the Veteran has been afforded adequate assistance in obtaining his records. Available service treatment records (STRs) are of record, and VA Medical Center records have been obtained. The Board is also unaware of any outstanding evidence. The duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). A medical examination and/or medical opinion is necessary when there is evidence that the Veteran has a current disability or at least symptoms thereof; evidence that he suffered an event, injury, or disease during service or manifested a disease during its presumptive period thereafter; an indication of a nexus between the aforementioned; and insufficient evidence for adjudication. Id.; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Medical evidence that suggests but does not confirm a nexus and credible lay evidence of continuity of symptomatology satisfies the low indication of a nexus threshold. Id. A VA medical examination is not necessary with regard to the Veteran's headaches claim, as the standard in McLendon is not met. Treatment records show no current diagnoses or complaints for headaches. Significantly, VA treatment notes indicate the Veteran denied headache symptomatology. See VA Treatment Records dated October 2012 to December 2015. Thus, a VA examination is unnecessary. The standard in McLendon is also not met with regard to the Veteran's tinnitus claim. The Board notes that, for purposes of establishing a current disability, the Veteran is considered competent to report the observable manifestations of his tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). The Board also notes that he may have in-service hazardous noise exposure as a result of his Military Occupational Specialty (MOS) as a member of the military sea transportation services (MSTS). See VA Adjudication Manual M21-1, Part III, Subpart iv, chpt. 4, § B, para 4 (e). Nonetheless, the crucial question now is whether the evidence suggests a nexus between the Veteran's suggested tinnitus and possible in-service noise exposure. The Board finds it does not. Importantly, the record is devoid of medical and lay evidence regarding tinnitus. STRs indicated that the Veteran's ears were normal throughout service and upon separation. After separation, VA examinations were negative for symptoms or diagnoses of tinnitus. See February 1960 and April 1963 VA Examinations. Most significantly, throughout the pendency of the appeal, VA treatment notes show no symptoms or diagnoses of tinnitus. See VA Treatment Records dated October 2012 to December 2015. Correspondingly, the Veteran has not asserted that his tinnitus began in or immediately following service. Thus, there is no evidence to suggest a nexus between his possible tinnitus and in-service noise exposure. As such, a VA examination is unnecessary. That said, the Board acknowledges the lack of supporting contemporaneous medical evidence in this case. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). 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. Id. As such, there is no duty on the part of VA to provide a medical examination. Therefore, the Board finds that VA has satisfied its duty to assist, and no further assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may be granted for any disease first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally, to grant service connection, the record must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the Veteran had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where a veteran served for at least 90 days after December 31, 1946 and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of that service, that disability shall be presumed to have been incurred or aggravated in service, even though there is no evidence of the disability during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence as to any issue material to the decision of a matter, VA resolves reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence must preponderate against an issue to deny that claim on its merits. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends his headache disability and tinnitus should be service connected. See May 2016 Brief. However, the record is negative for reports, statements, or testimony by the Veteran as to the date his symptoms first manifested. See January 2015 Notice of Disagreement (NOD), October 2014 Claim, and February 2016 VA Form 9. Headaches July 1958 STRs note the Veteran's various complaints of headaches. However, these headaches were noted as being related to a transitory illness. By July 31, 1958 STRs reflect no reports of headaches. Id. Significantly, just twenty days after his initial illness, he was found fit for discharge and was negative for neurological and head symptomatology. See August 1958 Separation Exam. Post-service VA examinations in February 1960 and April 1963 are negative for headache complaints or diagnoses. They note that the Veteran had a normal head. Moreover, treatment records during the pendency of the appeal are also negative for such complaints or diagnoses. Rather, these records consistently illustrate the Veteran's denial of headache symptoms. Following review of the record, the Board finds service connection is not warranted for a chronic headache disability. While, the Veteran complained of headaches during service, that condition appears to have resolved with no residual disability. Additionally, all post-service treatment records are negative for headaches. Likewise, there is no competent evidence diagnosing a chronic headache disability within a year of service discharge. The lack of evidence of a chronic headache disability in-service or within a year of service discharge is evidence against a finding for service connection on the theories of direct onset (38 C.F.R § 3.303(a)) or a presumption of service connection (38 C.F.R. §§ 3.307, 3.309). Further, as no physician has ever related the Veteran's complaints of headaches in-service to his current complaints, there is no basis to establish service connection based on continuity of symptomatology (38 C.F.R. § 3.303 (b)). Finally, as previously stated herein, the lay evidence of record specifically denies headaches throughout the pendency of the appeal. Nonetheless, the Board notes that, while lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a chronic headache disability 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), and is not the type of condition that is readily amenable to mere lay comment regarding etiology. That is, although the Board would readily acknowledge hypothetically that the Veteran is competent to report symptoms of headache, there is no indication that he is competent to link etiologically any reported in-service symptoms to a chronic headache disability diagnosed many years after his discharge, or to link his current diagnosis to a service-connected disability. He has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating neurological/headache disabilities. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; Gilbert supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. Tinnitus As previously indicated, the Board finds that there is competent evidence to suggest that the Veteran currently has tinnitus. Charles v. Principi, 16 Vet. App. at 374-375; see also October 2014 Claim. The Board also acknowledges that the record suggests the Veteran experienced in-service hazardous noise exposure. Specifically, the Veteran's DD 214 indicates that his MOS was as a member of the MSTS. Navy specialties related to transportation are noted in the Duty MOS Noise Exposure Listing in the VA Adjudication Manual M21-1. The specific listing for transportation indicates a "moderate" probability of hazardous noise exposure. As such, the M21-1 provides that exposure to hazardous noise should be conceded. See M21-1, III.iv.4.B.4.e. In light of this, exposure to hazardous noise during service is conceded. Despite these findings, the evidence suggests no causal relationship between tinnitus and in-service hazardous noise exposure. Medical and lay evidence of record are negative for complaints or diagnoses of tinnitus. Specifically, the Veteran's October 1954 entrance and August 1958 separation examinations were negative for diagnoses or complaints and noted clinically normal ears. See STRs. In addition, February 1960 and April 1963 VA examinations indicated that he had normal ears immediately following service. Further, to date VA medical records show no treatment, diagnosis, or complaints of tinnitus. See VA Treatment records dated October 2012 to December 2015. Most significantly, the Veteran has not asserted how or when his tinnitus developed. Even his original claim was silent as to the date of onset or an assertion of noise exposure. Comparatively, the clinical treatment record establishes that since service he has had clinically normal ears with no reports of tinnitus. Accordingly, the preponderance of the evidence is against a finding that his tinnitus is causally related to his in-service hazardous noise exposure. Further, service connection for tinnitus cannot be presumed under 38 C.F.R. § 3.309 as the Veteran has not established continuity of symptomatology. Specifically, as previously stated herein, VA examinations following service do not show complaints of tinnitus, and at no time has the Veteran reported that his tinnitus began within one year of active service. See February 1960 and April 1963 VA Examinations and VA Treatment records dated October 2012 to December 2015. As such, entitlement to service connection for tinnitus is not warranted. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a result of the foregoing, the claims of entitlement to service connection for a chronic headache disability and tinnitus must, therefore, be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's service connection claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a chronic headache disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs