Citation Nr: 1706384	
Decision Date: 03/02/17    Archive Date: 03/16/17

DOCKET NO.  12-21 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for an inner ear disability.


REPRESENTATION

Veteran represented by:	West Virginia Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1971 to February 1973.

These claims are before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Jurisdiction for the Veteran's claims is under the Pittsburgh, Pennsylvania RO.

The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in September 2012. A transcript of the hearing was prepared and associated with the claims file.

The Board remanded this matter in July 2015 for additional development. In its consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

A May 2016 Supplemental Statement of the Case (SSOC) issued by the RO continued to deny service connection for tinnitus and an inner ear disability.

The issue of entitlement to service connection for an inner ear disability 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 or within one year of active service, and any tinnitus the Veteran has 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. §§ 1101, 1110, 5103, 5013A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will obtain, and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The VCAA duty to notify was initially satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in June 2011. The letter informed the Veteran of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. Thus, the Veteran has received the required notice concerning the claim.

VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds all necessary development has been accomplished. The claims file contains the Veteran's service treatment records, VA and private medical treatment evidence, and the Veteran's statements and testimony.

The Board has considered the applicable factors to determine whether the Veteran's service connection claim for tinnitus warrants any VA examination in order to comply with the duty to assist. While there is evidence of a current disability, the Board finds, as discussed in more detail below, that there is no competent, credible evidence of any in-service tinnitus, and thus, there is no suggestion that the current disability could be related to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this decision, the Board finds the Veteran's service treatment records are silent as to any complaints of tinnitus or ringing in the ears while in service. Additionally, in February 1999, the Veteran reported occasional ringing (among other symptoms), which he stated had started one and one-half years ago. Such statement establishes the onset of tinnitus more than 20 years following service discharge. This further supports the Board's finding of no in-service disease or injury. For these reasons, the evidence does not indicate the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon v. Nicholson.

After review of the Veteran's statements and the medical evidence of record, no available outstanding evidence has been identified. For the above reasons, no further assistance to the Veteran is required. 38 C.F.R. § 3.159(c).

As noted in the introduction, the Veteran was provided with a hearing before the Board. In Bryant v. Shinseki, Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law judge who conducts a hearing fulfill two duties to comply with the above regulation. Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned fully explained the issues involved and the record was held open an additional 30 days to ensure the results of the upcoming VA examination was included in the record. See Transcript, page 10-11. The Judge noted at the hearing that some private records seemed to be missing, and the Veteran submitted that evidence at the hearing. Id., page 12. Thus, the evidence shows the Veteran had actual knowledge of the evidence needed to substantiate the claim. The Board concludes it met all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant.

Additionally, the Board finds there has been substantial compliance with its July 2015 remand directives. The record indicates the RO located outstanding VA treatment records, including the October 2012 VA examination. The Veteran was contacted and provided a completed release form (VA Form 21-4142) authorizing the VA to request copies from private medical providers, specifically for Wynn Medical Park records. These records were received and included with the claims file. The RO issued an SSOC in May 2016. Based on the foregoing, the Board finds the RO substantially complied with the mandates of the Board's remand. Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence of record, consistent with 38 C.F.R. § 3.655. 

II. Service Connection

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, 1131; 38 C.F.R. § 3.303(a). 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).

Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Tinnitus, an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015).


In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

The Courts have held that "[l]ay evidence can be competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 429 F.3d 1372, 1377 (Fed. Cir. 2007).

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")).

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)).

In light of the applicable law set forth above, the Board has carefully considered the facts of this case. Ultimately, the Veteran's claim for service connection must be denied because a preponderance of the credible and competent evidence of record weighs unfavorably against the claim.

The Veteran reported his tinnitus began in basic training in 1971. See May 2011 VA Form 21-526. However, STRs indicate the Veteran did not report any ear or hearing injuries or disabilities while in service. 

The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The entrance examination noted the Veteran had a perforation of the ear drum at entrance, but otherwise reported normal hearing and a PULHES score of "1" for hearing and ears. At separation, the PULHES score remained at "1" for hearing and ears, and the Veteran's hearing was noted to be within normal limits. The Veteran reported his health to be "good" at separation. Such evidence tends to establish the Veteran did not have tinnitus in service.

In February 1999, 26 years after separation, the Veteran began seeing a private doctor for his hearing issues, complaining of ringing in his ears. The Veteran reported these symptoms began one and one-half years prior to this examination. This evidence tends to establish the Veteran first demonstrated tinnitus decades after service. In August 2009, a private physician noted no tinnitus was present at a physical exam. In a May 2011 VA treatment record, the examiner, when reviewing the Veteran's ears, checked that there were no current complains. Listed under that entry were hearing loss, ringing in the ears, ear pain, and discharge. The Board concludes that this means the Veteran was specifically asked about each one of these symptoms and that he denied having them, which is why the examiner checked that the Veteran had no current complaints.  In 2012, private physicians and VA records indicate a history of tinnitus, and the Veteran reported ringing in his ears.

At his videoconference hearing in September 2012, the Veteran reported his tinnitus began in service. He first remembers it while in basic training, and he reported it got continuously worse through service. His testimony at the hearing was that the ringing in his ears has continued at varying levels and frequencies to the present day.

The Veteran, at his regular physicals at the VA, continued to report ringing in the ears in 2014 and 2015.

Finally, the RO, in its initial rating decision, denied the Veteran's claim, in part, because the Veteran failed to provide an instance of acoustic trauma while in service. The RO instructed the Veteran to notify the RO of any such exposure. To date, the Veteran has not provided any details regarding in-service acoustic trauma.

Given the evidence of record, the Veteran's lay assertions alone, though competent, are not sufficient to establish tinnitus in service and since service. The Board finds the medical evidence generated at the time of the Veteran's period of active service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records were created contemporaneously 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 the Veteran specifically reported no issues with his ears or hearing at his separation examination, despite noting issues with his eyes and motion sickness. At the separation exam, the Veteran's hearing test was within normal limits, and he maintained a PULHES score of "1" for hearing and ears. The Board also accords high probative value to the February 1999 private medical record that shows the Veteran reported the onset of tinnitus in approximately 1997. This further supports the finding that tinnitus did not have its onset in service. As a result, the Board finds the STRs and the Veteran's own statements generated at the time of service and at the time he was treated in 1999 outweigh his own lay statements reporting tinnitus beginning in basic training.

In light of the above, the Board finds the preponderance of the evidence is against a finding that any tinnitus diagnosis is related to service. 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).
ORDER

Service connection for tinnitus is denied.


REMAND

A review of the record indicates further development is necessary before the Veteran's remaining claim on appeal can be decided.

The Veteran contends his inner-ear disability began while in service, and the disability has continued since service separation. The Veteran further contends his inner-ear disability is related to Agent Orange (AO) exposure during his service in Vietnam.

The Veteran's entrance examination in February 1971 noted ear drum perforation.

Generally, a Veteran is presumed in sound condition except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Where a disorder is noted on service entrance, 38 U.S.C.A. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153).

This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn, 25 Vet. App. at 235 ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."); see also 38 C.F.R. § 3.306(b).

The October 2012 VA audiologic evaluation is inadequate for purposes of determining whether service connection is warranted. The examination found scores consistent with a "severe self-perceived hearing handicap" but also indicated the results of the audiologic evaluation revealed "essentially normal hearing sensitivity." However, the examination also notes "mild loss." The examiner made no specific diagnosis, did not indicate any review of the file, other than that there was no audiology records for the Veteran at the time of the examination, and did not provide any determination as to whether any current inner ear disability was due to an in-service injury, event, or illness, to include exposure to AO.

Accordingly, the case is REMANDED for the following action:

1. Obtain a VA examination to determine the current nature and etiology of any diagnosed inner ear disability. The examiner must make specific findings regarding: 

(a)  Whether it is as least as likely as not (50 percent or more probability) that any inner ear disability was caused by exposure to AO in service or is otherwise related to service; and

(b) Whether the inner-ear disability was related to the perforated ear drum noted in the entrance examination, and if related, whether the inner-ear disability worsened during service. 

The examiner should assume AO exposure in addressing these issues, and he or she should provide an explanation for the opinion reached. The examiner must provide specific reasons in support of the opinion, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran's inner ear disability, and whether the condition has manifested itself in an unusual manner.  

The claims folder must be made available for review in connection with this examination.  Further, the examination report should provide a complete rationale for all conclusions reached.

2. Readjudicate the issue. If any benefit sought on appeal remains denied, then a fully responsive SSOC should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. Thereafter, return the appeal to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs