Citation Nr: 1752903	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  13-32 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for recurrent tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from April 1986 to December 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the Board at a September 2016 hearing conducted via videoconference.  A transcript of the hearing is of record.

The issue of an application to reopen a previously disallowed claim of service connection for bilateral hearing loss has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).  The Veteran and his representative are reminded that to apply to reopen the claim, formal application must be made on the appropriate form furnished by the Secretary.


FINDING OF FACT

Recurrent tinnitus was not manifest in active service or within one year of service discharge; any current tinnitus is not otherwise etiologically related to the Veteran's active service.


CONCLUSION OF LAW

Recurrent tinnitus was not incurred in or aggravated by active duty service and may not be presumed to have been incurred therein.  38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017).

 
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  All pertinent treatment records identified by the Veteran have been obtained, and VA examinations have been provided where warranted.  There has been no allegation of errors with the duties to notify and/or assist in the instant case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159.



Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

Generally, to establish service connection, a claimant 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).

VA has established certain rules and presumptions for chronic diseases.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Organic diseases of the nervous system, including recurrent tinnitus, are considered by VA to be chronic diseases.  38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).

The Veteran seeks entitlement to service connection for recurrent tinnitus due to in-service acoustic trauma.  Initially, the Board observes that, based on his military occupational specialty (MOS), the AOJ has conceded in-service acoustic trauma; the Board agrees.  Further, as tinnitus is the type of disability associated with symptoms capable of lay observation (ringing or buzzing in the ears), the Veteran has established a current disability.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The remaining element is whether there is a nexus between his current tinnitus and his in-service acoustic trauma.  See Shedden, 381 F.3d at 1167.

Service treatment records are absent complaints of, or treatment for, recurrent tinnitus or any associated symptomatology while in service.  The Board has considered the Veteran's statements that he began to experience symptoms of ringing in the years while in service, which have persisted since.  See, e.g., September 2016 Board hearing transcript at 8.  However, the Board finds these statements are not credible.  In this regard, both at separation from active service and during his service in the Army Reserve, the Veteran himself denied a prior history of hearing loss or ear trouble, though he did check "yes" to a number of unrelated medical conditions.  See November 1991 and March 2002 Reports of Medical History.  More recently, at a January 2007 VA examination, the Veteran reported that he initially noted tinnitus, then described as bilateral "popping," a couple years prior, or approximately 2005.  Finally, VA treatment records dated as recently as July 2014 indicate the Veteran has denied tinnitus.

As a fact-finding matter, the Board finds serious questions about the consistency, timing and accuracy of the Veteran's accounts to raise serious credibility issues with his statements and assertions regarding in-service symptomatology and a continuity of symptomatology since.  Because of the inconsistent, contradictory nature of the Veteran's statements, particularly his own reports of onset of symptomatology approximately 14 years following service separation, and the medical evidence of record, the Board finds that they are not credible with respect to the onset and continuity of symptomatology regarding his recurrent tinnitus.  Accordingly, the Board finds that there is no credible evidence to support a finding that the Veteran suffered from symptoms related to recurrent tinnitus continuously since active service, and service connection is not warranted for tinnitus on this basis.  See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Furthermore, there is no competent and credible evidence that the Veteran's recurrent tinnitus manifest to a compensable degree within one year of service discharge.  Therefore, the presumption of service connection related to chronic disabilities does not apply.  See 38 C.F.R. § 3.309(a).

The Veteran was afforded a VA examination in February 2011, with an etiological opinion obtained in August 2011.  After reviewing the Veteran's service treatment records and claims folder, and examining the Veteran, which included obtaining a full history from the Veteran, the VA examiner stated the Veteran's recurrent tinnitus is not etiologically due to active service.  As a rationale, the VA examiner noted the Veteran's own previous reports of an onset of symptomatology in approximately 2005, as well as a lack of evidence of current cochlear damage.  Finally, the VA examiner cited extensive medical research regarding possible causes of tinnitus other than acoustic trauma, such as medicines or other health problems.

While the Veteran asserts that physicians have attributed his current tinnitus to his in-service acoustic trauma, the Board assigns no probative value to these reports. The Board observes there is no written opinion of record in support of his claim.  Further, the connection between what a physician said and the layman's account of what he purportedly said, when filtered through a layman's sensibilities is attenuated and inherently unreliable.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995); Dean v. Brown, 8 Vet. App. 449 (1995).

The Board acknowledges that the Veteran himself has claimed his tinnitus is directly related to his active service.  However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., ringing or buzzing in the ears; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection.  Latham v. Brown, 7 Vet. App. 359, 365 (1995).

In sum, the Board finds that there is no objective evidence of tinnitus in service.  The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current disability and his active service.  The preponderance of the evidence is against this aspect of the Veteran's claim.  The Board has determined that the Veteran's assertions of in-service symptoms of ringing in the ears and continuity since are not credible and afforded no probative value, and there is no competent medical opinion of record linking the Veteran's disability to his active service.

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for recurrent tinnitus, and the benefit of the doubt rule does not apply.  See 38 U.S.C. § 5107 (West 2012).


ORDER

Service connection for recurrent tinnitus is denied.


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs