Citation Nr: 1757058 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-19 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Air Force from June 1974 to June 1994. This appeal to the Board of Veterans' Appeals (Board) is from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran provided testimony in support of his claims during a video conference hearing before the undersigned; a transcript of this hearing is of record. During the hearing, the Veteran submitted additional medical evidence with a waiver of initial RO consideration. The undersigned also agreed to leave the record open for 90 days to allow the Veteran to submit additional evidence. The Board received additional evidence in September 2017 and the Veteran's representative waived initial RO consideration. The issue of service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The more credible and probative evidence indicates that the Veteran's tinnitus is not related to his service. CONCLUSION OF LAW The criteria are not met for service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act have been met in this case. See 38 U.S.C.A. §§ 5103, 5103A. The required notice was provided to the Veteran via letter in May 2011. The Veteran has not identified any defect in this notice or claimed any prejudice as a result. VA has also fulfilled its duty to assist the Veteran in developing his claim. Post-service VA and private medical records have been obtained and associated with the claims file. The Veteran was afforded an examination and an opinion was obtained. Unfortunately, the service treatment records are not available. VA's attempts to obtain these records and the subsequent notice of their unavailability comply with VA's duty to assist regarding the duty to make efforts obtain these records and notify the Veteran of their unavailability. 38 C.F.R. § 3.159(e). Where service treatment records are unavailable through no fault of the Veteran, VA has a heightened obligation to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C. § 5107(a); 3.303(a). In this regard, the Board recognizes that the below remand contains instructions to develop for a copy of an October 2016 hearing test. As will be explained in greater detail below, the October 2016 hearing test was to have been received during the July 2017 videoconference hearing. During the hearing, the Veteran's representative addressed this report and indicated that it did not contain a medical opinion or any other evidence relevant to the etiology of the claimed disabilities. As the matter of whether there is a current diagnosis of tinnitus is not in dispute, the Board finds that it may proceed to an adjudication of the claim for service connection for tinnitus as it is not anticipated that the October 2016 hearing test will contain information pertinent to the instant claim. Thus, the Board finds that VA has satisfied its duties to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims. II. Legal Criteria and Analysis Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence 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. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as organic diseases of the nervous system are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is considered organic diseases of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The earliest records pertaining to hearing problems were in February and March 2006, but none of these records note complaints of tinnitus. The first documented complaints of tinnitus are in April 2011. A May 2011 private treatment record also notes complaints of tinnitus. See Medical Treatment Record - Non-Government Facility received May 2011. On July 2011 VA examination, the Veteran complained of tinnitus. He reported working security on the flight line during service. He was issued ear plugs and reported being exposed to daily aircraft noise in service as well as weapons fire for qualifying training. The examiner opined that the Veteran's tinnitus was not secondary to hearing loss and exposure to loud noise. He noted that the Veteran had tinnitus two to three times and that it was due to Eustachian tube dysfunction. He added that there was no tinnitus prior to the Eustachian tube dysfunction. See VA Examination received July 2011. In July 2017, the Veteran testified that his tinnitus began in service during basic training right after small arms and rifle qualifications, but he never reported it to a medic or medical officer. He also stated that it was continuous since service and has never gone away. The VA examination report provides the most probative evidence and it is against the claim for service connection. As the VA examiner's opinion was based on a review of the pertinent medical history and is supported by sound medical rationale, it provides compelling evidence against the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, there is no competent medical opinion to the contrary. The Board has considered the Veteran's testimony that he has had tinnitus continuously since basic training, but does not find it to be probative. It is well established that a Veteran is competent to report to symptoms. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Despite the competency of the statement, the Board does not find it credible. The Veteran testified that he never complained of tinnitus during service. It is unlikely that if it had begun during basic training that he would not have reported it even once during his 20 years of service. It seems even more unlikely that he had tinnitus since 1974 when it is considered in conjunction with the post-service treatment records that include treatment for hearing problems in early 2006 that do not contain any complaints of tinnitus. As noted previously, complaints of tinnitus were not noted until April 2011. The Veteran has not provided an adequate explanation as to why he would not report his symptoms until 2011 if they were continuously present since 1974, particularly since he received E.N.T treatment in 2006. In short, it is not credible that the Veteran would wait 37 years to report his tinnitus if it had been present since 1974. The Board may weight his lay statements against the absence of contemporaneous medical evidence. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Moreover, at the July 2011 VA examination, the Veteran reported not having any tinnitus prior to a Eustachian tube dysfunction. The Veteran's inconsistent statements regarding onset also belie the credibility of his later statements indicating that his tinnitus has been continuous since service. Notably, in Rucker v. Brown, 10 Vet. App. 67, 73 (1997), the United States Court of Appeals for Veterans Claims (Court) held that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate. Specifically, the Court observed that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Thus, it would also appear logical that had the Veteran's began in service, as he now claims, he would have reported the history of this disability thus to the July 2011 VA examiner. In light of the above, the Board finds that the Veteran's testimony is not credible or probative evidence of continuous symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). Since there is no probative evidence of tinnitus until many years after service, service connection may not be granted on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309. As there is no notation of tinnitus during service, the provisions for chronic disorders based on continuity of symptomatology are also not applicable. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, in light of the unfavorable opinion, there is no probative evidence that of a nexus between the Veteran's tinnitus and service. In sum, the Board finds that a preponderance of the evidence is against service connection for tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt rule, but finds it does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for tinnitus is denied. REMAND As indicated in the Introduction, during the July 2017 videoconference hearing, the Veteran submitted additional medical evidence with a waiver of initial RO consideration. Specifically, the Veteran's representative stated the Veteran had a recent hearing evaluation from October 2016 that he wished to add to the record. Unfortunately, this evidence has not been added to the record. Consequently, this matter must be remanded in order to obtain the record. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to either submit another copy of the October 2016 hearing test discussed during the July 2017 videoconference hearing or complete and return a release to allow VA to secure the record directly from the treatment provider. If the Veteran submits a release, then appropriate efforts must be undertaken to obtain and associate a copy of the October 2016 hearing test with the record. 2. If any additional evidence received contains evidence that the Veteran has a hearing loss disability, as defined by regulation, then arrange for an audiologist to review the record and provide a supplemental opinion. The opinion should address whether the right hear hearing loss is as least as likely as not (50 percent probability or greater) related to the Veteran's service to include noise exposure and must be accompanied by an adequate rationale for the basis of the opinion. 3. After completing the above actions and any other development as may be indicated as a consequence of the action taken above, the RO must readjudicate the Veteran's claims on appeal, in light of all the evidence of record. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs