Citation Nr: 0007461 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-33 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from April 1973 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the veteran's petition to reopen a claim for service connection for tinnitus. The claim was denied by the RO in an August 1994 rating decision which the veteran did not appeal, and the rating decision became final. The veteran appealed the July 1997 rating decision to the Board and, during the course of the appeal period, the RO reopened the claim as shown in the October 1997 statement of the case and denied it on the basis that the claim for service connection for tinnitus was not well grounded. In July 1999, the Board noted that the veteran had requested a hearing be held at the RO in Montgomery, Alabama, and that it appeared that he wished to appoint a new representative, and therefore, the Board remanded the case to the RO to have these matters attended to. The veteran had moved to Alabama and his case is presently under the jurisdiction of the Montgomery, Alabama, RO. On remand, the veteran submitted forms designating The American Legion to represent him, and he was scheduled for a hearing before a member of the Board. The hearing was held on October 19, 1999, in Montgomery, Alabama, before Bettina S. Callaway, a member of the Board who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 1991) and who is rendering the determination in this case. FINDINGS OF FACT 1. Entitlement to service connection for tinnitus was denied by a rating decision in August 1994; following appropriate notification, the veteran did not appeal. 3. The veteran was seen in early April 1997 for complaints of tinnitus which the examiner attributed to sinusitis. 4. An examiner rendered an assessment of tinnitus in April 1997. 5. The new evidence submitted since the August 1994 rating action bears directly and substantially on the issue and, together with the evidence previously assembled, is so significant that it must be considered in order to fairly determine the merits of the claim. 6. The veteran was seen on one occasion in service for complaints of ringing in the right ear which the examiner associated with a Eustachian tube dysfunction. 7. The veteran's complaints of tinnitus were recorded on VA examination reports conducted in July 1994. 8. No medical evidence has been presented or secured to render plausible a claim that tinnitus in this case is an organic disease of the nervous system. 9. No medical evidence has been presented or secured to render plausible a link between complaints of ringing in the ear on one occasion in service in December 1990 and a post- service assessment of tinnitus in April 1997. 10. No medical evidence has been presented or secured to render plausible a link between current tinnitus and a disease or injury incurred in service. 11. The veteran has provided his own statements of continuous, severe tinnitus since December 1990. CONCLUSIONS OF LAW 1. New and material evidence having been submitted since the unappealed, final rating action in August 1994, the claim to entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claim to entitlement to service connection for tinnitus is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. Service connection for tinnitus is not warranted in this case. 38 U.S.C.A. § 1110; 1112 (West 1991); 38 C.F.R. § 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the veteran is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. The appellant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if a NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20. 302(a) (1999). In August 1994 the veteran was notified of a rating decision denying service connection for tinnitus. He did not appeal that decision and it is therefore final. 38 U.S.C.A. § 7105 (West 1999). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge, 155 F.3d at 1363. Regardless of the action of the RO concerning reopening of a finally denied claim, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). Although this claim does not involve a prior final denial by the Board but rather by the RO, the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim. When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. There is no duty to assist in the absence of a well grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C.§ 5107(b) has been fulfilled. Evidence submitted since the August 1994 rating action includes medical treatment reports showing complaints of tinnitus and a medical assessment of tinnitus. While this information was of record at the time of the final rating action, the Board finds that these additional records are not simply cumulative, but contribute to a showing of continuity of complaints of symptomatology following discharge from service and thus contributes to a more complete picture of the circumstances surrounding the origin of tinnitus. See Hodge, 155 F.3d at 1363; see also Savage v. Gober, 10 Vet. App. 488 (1997). The evidence received since August 1994 is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or unless it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216,220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The Board finds this evidence bears directly and substantially on the issue before us; it is new and material and the claim is reopened. The Board must now proceed to determine whether the claim is well grounded. In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself in service and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. Rose v. West, 11 Vet. App. 169, 171 (1998); see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). To establish a well grounded claim for service connection, a claimant has the burden to submit competent evidence to support each element of the claim, e.g., for direct service connection, the existence of a current disability; an injury sustained or disease contracted in service; and a link or nexus between the two. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Evidence submitted in support of a claim "must . . . be accepted as true for the purpose of determining whether the claim is well grounded . . . [except] when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the veteran was seen in service on one occasion in December 1990 for complaints of ringing and pain in the right ear for one week, and the examiner diagnosed questionable Eustachian tube dysfunction, right ear. On examination, the nose was positive for "[illegible] of mucosa bilaterally". The examiner prescribed Entex LA, which contains decongestant and expectorant ingredients and is indicated for the symptomatic relief of sinusitis, bronchitis, pharyngitis, and coryza when these conditions are associated with nasal congestion and viscous mucus in the lower respiratory tract. Physician's Desk Reference (PDR) 1922 (49th ed. 1995). The examiner also prescribed Nasalide nasal spray which is indicated for the treatment of seasonal or perennial rhinitis. Id. at 2480. On a July 1994 Persian Gulf examination, the veteran reported that he had served in the Persian Gulf from December 1991 to April 1992 and that, while in the Gulf, he had "buzzing" in his right ear which he still had. No diagnosis was rendered relevant to this history. On July 1994 VA general medical and audio examination reports, the veteran also provided a history of tinnitus in the right ear since 1993 or for one year prior to the examinations and provided a history of exposure to aircraft noise, diesel engines, and weapons. The general medical examiner diagnosed tinnitus of questionable etiology and the audio examiner recommended the veteran for an Ear, Nose, and Throat (ENT) consultation due to the complaint of unilateral tinnitus. An early April 1997 examination report from Tricare Prime Coast Guard showed a history of tinnitus in the right ear since 1990 and present complaints of tinnitus in the left ear for three days accompanied by complaint of coughing, congestion, and lightheadedness when the head was moved laterally. The examiner diagnosed sinusitis, and the treatment plan included Biaxin, which is an antibiotic, and Antivert, an antihistamine used in the control of vertigo and motion sickness. PDR at 407, 2080. In mid-April, the veteran was seen again with complaints of ringing in the right ear for two days. He denied high noise area exposure. The examiner's assessment was tinnitus and the examiner noted that the benign nature of the condition was discussed with the veteran and he was given a handout and an ENT referral. In October 1997, the veteran submitted a July 1994 VA audiological evaluation sheet, which was part of the July 1994 VA audiological report already of record, showing the complaint of tinnitus in the right ear for the past year, the history of noise exposure in service, and the recommendation for an ENT consultation. The VA consultation sheet showed that the veteran did not report for the scheduled ENT consultation in December 1994. On his November 1997 VA Form 9 substantive appeal, the veteran contended that the ringing in his ear was first diagnosed on active duty as a Eustachian tube dysfunction, that he was told that there was no treatment for this problem, and so he did not seek medical assistance on a regular basis. He stated that the condition was intermittent initially but now it was constant. In December 1997, the veteran submitted a report of a private audiological evaluation on which the audiologist made notations which stated, "accuracy in question" and the recommendation was to rule out retrocochlear pathology. The veteran also submitted a report of a private magnetic resonance imaging (MRI) of the brain which reflected the impression of no intracranial abnormality. At a hearing before the Board in October 1999, the veteran testified that the ringing in his right ear began in service in December 1990. At first he stated that he had not experienced any dizzy spells along with the ringing in the ear but later he testified that he had experienced dizzy spell or vertigo. He testified that he was exposed to noise in service. He also testified that doctors who had examined him had never found a disease of the ear or discerned any other cause of the tinnitus. In a May 1990 statement in a VA Form 646, the veteran states that a diagnosis of tinnitus was rendered in a July 1994 VA examination which was within one-year of the veteran's discharge from active service in September 1993 and therefore service connection should be granted for tinnitus under the category for "other organic diseases of the nervous system" under provisions in the law which provide that service connection for certain diseases, including "organic diseases of the nervous system" other than certain diseases specified, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1999). However, whether tinnitus is an organic disease of the nervous system is a medical matter requiring medical evidence for its support and resolution, and no medical evidence has been presented or secured to render plausible a claim that tinnitus in this case is attributable to an organic disease of the nervous system. Accordingly, the Board concludes that the claim for service connection on a presumptive basis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Tinnitus is a "perception of sound in the absence of acoustic stimulus" and is a subjective experience of the patient. Robert Berkow, M.D., The Merck Manual Of Diagnosis And Therapy, 2172 (15th ed. 1987). Since the disease is defined as a subjective experience of the patient, it is an underlying disability for which lay statements can provide evidence of continuity of symptomatology since service. Savage, 10 Vet. App. at 495-97. Accordingly, the Board concludes that the claim for service connection is well grounded because the veteran has provided his own lay statement of continuity of symptomatology of tinnitus since he first complained of it in service in December 1990. 38 U.S.C.A. § 5107(a) (West 1991). Having found that the claim is well grounded, the Board must now determine whether it may proceed to consider the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). We note that the RO found the evidence new and material and reopened the claim, but then determined that the claim was not well grounded. Because the evidence considered by the RO as insufficient to well ground the claim is the same evidence that this Board has found sufficient to well ground the claim, we are of the opinion that no prejudice will result from our considering the claim on its merits. Moreover, the veteran has been provided the applicable law and regulations regarding establishing entitlement to service connection, and he has had the opportunity to argue the case on the merits both before the RO and the Board. Turning to the merits of the claim, the Board finds first that the lay evidence of continuity is not credible because doctors both in service in 1990 and currently in 1997 have associated the complaints of tinnitus with diagnoses of other underlying disorders, namely, possible Eustachian tube dysfunction (1990) and sinusitis (1997) and have prescribed antihistamines and antibiotics to treat the underlying disorders. Second, although on one occasion in April 1997, a private examiner noted an assessment of tinnitus as opposed to recording tinnitus merely as history or as a complaint as the VA audiologist did in July 1994, there is no evidence of any link between the post-service assessment and a disease or injury incurred in service. Third, the veteran has provided contradictory statements about certain matters, e.g., providing a history to some examiners of noise exposure in service (July 1997) and denying noise exposure on other occasions (April 1997) and stating that he has not experienced dizzy spells in conjunction with the tinnitus (October 1999 Board Transcript, page 4) and that he has experienced such spells (Id. at page 8; April 1997 Triage and Nursing Note). See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."), citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by witness' "inconsistent affidavits" and "expressed recognition of the difficulties of remembering specific dates of events that happened . . . long ago"); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by testimony which was inconsistent with prior written statements). Fourth, although the veteran stated that he has not sought treatment because doctors have told him the disorder cannot be treated, the medical evidence of record shows that doctors have treated underlying disorders with which tinnitus was symptomatically associated (December 1990 and April 1997) and have referred the veteran for ENT consultations with regard to the tinnitus (July 1994 and April 1997). Finally, the absence of any clinical records documenting a continuity of symptoms for several years (1990 to 1994), after the one complaint of tinnitus which was treated symptomatically in service, and then for several more years post-service (1994 to 1997), is of more probative weight than the veteran's own lay statements of continuous, severe tinnitus of the right ear. Because of the lack of continuity of complaints or treatment for several years in service and post-service and for the reasons enumerated above, the Board concludes that the veteran's statements supporting an in-service incurrence of chronic tinnitus are not as probative as the lack of objective evidence of continuity. Thus, on the merits, the weight of the more probative evidence is against the claim, and therefore the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Service connection for tinnitus is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals