Citation Nr: 1328771 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-24 063 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a temporomandibular joint (TMJ) disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1972 to May 1974. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2010 rating decision in which the RO, inter alia, denied the Veteran's claims for service connection for a TMJ disorder and tinnitus. In his May 2010 substantive appeal, the Veteran requested a hearing before a Decision Review Officer at the RO. A November 2010 letter informed him that his hearing was scheduled for January 2011. However, in correspondence received later that month, the Veteran canceled his hearing request. In June 2012, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c)(2012). In June 2012, the Board, inter alia, remanded the instant claims to the RO, via the Appeals Management Center (AMC) for further action, to include additional development of the evidence. After accomplishing additional action, the AMC continued to deny the claims, and returned the matter to the Board for further appellate consideration. A review of the paperless, electronic (Virtual VA) claims processing system reveals an October 2009 VA examination report; such a report was considered in the February 2010 rating decision. As a final preliminary matter, the Board notes that the Veteran's original VA claims file had been lost sometime after the issuance of the Board's June 2012 remand. The Veteran was informed that his original claims file could not be located and that VA was in the process of rebuilding his file in a June 2013 letter. Fortunately, in August 2013, the RO located the Veteran's original claims file and it has been associated with his rebuilt file at the Board. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished. 2. While the Veteran's congenital dental malocclusion would have clearly and unmistakably preexisted service, competent, persuasive evidence does not support a finding of disability due to aggravation beyond natural progression by an in-service injury, event or illness. 3. A TMJ disorder is not shown in service or for many years thereafter, and the medical opinions to directly address the medical relationship, if any, between current TMJ disorder and service weigh against the claim. 4. Although the Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service, he has not specifically or credibly asserted continuity of symptoms of tinnitus during and since service. 5. Tinnitus is not shown in service or for many years thereafter, and the medical opinions to directly address the medical relationship, if any, between current tinnitus and service weigh against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a TMJ disorder are not met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an August 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection. This letter provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. In addition, this letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records and the reports of VA examinations, as requested by the Board in its June 2012 remand, as well as the Veteran's service personnel records and a disc containing video footage of the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claims for service connection, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post 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.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). TMJ disorder and tinnitus are not listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On January 1972 service entrance examination and March 1974 service discharge examination, the s dental examination was found to be "acceptable" and each examination was negative for any relevant abnormalities. The Veteran denied ear trouble or severe tooth or gum trouble as well as suffering from any illness or injury other than those already noted in a March 1974 Report of Medical History (RMH). A January 2008 private treatment note reflects the Veteran's complaints of pressure and ringing in his ear as well as jaw popping and grinding. The provider indicated that these symptoms pointed towards a TMJ disorder. In an August 2009 opinion, Dr. D. M., a private otolaryngologist, indicated that the Veteran had been diagnosed with tinnitus and TMJ syndrome. The provider opined that the Veteran's "TMJ contribute[d] significantly to his tinnitus" and that his military noise exposure as well as the drill sergeant-related injury to his TMJ have all contributed to his tinnitus disability. In addition, the provider opined that the etiology of the Veteran's TMJ was "from a military injury from a drill sergeant" in 1972. In an October 2009 examination, the Veteran reports that the onset of tinnitus occurred two years ago and that he was exposed to noise during service as an armor tanker as well as when he was assigned to the firing line. Following a physical examination and a review of the Veteran's claims file, the examiner opined that it was at least as likely as not that the etiology of the Veteran's tinnitus was hearing loss as it was "well-documented that tinnitus was often associated with hearing loss." In addition, the examiner noted that the August 2009 opinion from Dr. D. M. should be "disregarded as he did not review the Veteran's claims file in conjunction with the interpretation of the audiometric pattern critically after careful consideration of noise exposure, auditory history (including separation audiogram), age, and general medical history of the Veteran." During the July 2012 VA examination, the Veteran reported that he was punched in the jaw by his drill instructor when he was 17 years old and that he was unable to move his jaw for four to five days. He reported having popping in his jaws when opening and chewing since that time and that these symptoms have worsened. The examiner noted that the Veteran had a very deep overlap of the anterior teeth (congenital malocclusion) with significant attrition of the canine incisal edges, which was indicative of bruxism. The examiner further noted that physical examination was consistent with a TMJ disorder, the exact nature which can only be determined after the completion of a Magnetic Resonance Imaging (MRI) scan. The examiner opined that it was impossible to determine without resorting to mere speculation whether the Veteran's current TMJ symptoms are otherwise medically related to the Veteran's active duty service as there was no documentation of the in-service incident/trauma (and the Veteran stated that he was unable to report it at the time), no records of any complaints or treatment of TMJ symptoms except for one dental note in 2008 and "simply no other documented evidence on which to base an opinion." The examiner further opined that the Veteran's congenital malocclusion and wear patterns indicative of chronic bruxism represent causes that were at least as likely as trauma. In a June 2013 VA examination report, the examiner notes that while a recent MRI scan had revealed normal temperomandibular joints bilaterally, there were symptoms of a TMJ disorder present including distinct jaw sounds on opening and right lateral excursion. The examiner opined that the Veteran's TMJ sounds on opening (signs and symptoms consistent with TMJ) was less likely than not (less than 50 percent probability) incurred in, caused by, or aggravated by, the claimed in-service injury, event or illness, to include the purported assault by the Veteran's drill sergeant during boot camp. The examiner further opined that it would be "mere conjecture" to opine as to whether the Veteran's congenital dental malocclusion, a condition which clearly and unmistakably would have existed prior to service, was aggravated beyond the natural progression by an in-service injury, event or illness, manifesting as bruxism and causing a TMJ disorder, as the Veteran's only service dental records were limited to his enlistment and discharge physical examinations being found to be "acceptable." The examiner noted that the Veteran entered service with no history of severe tooth or gum trouble, that there was no evidence of congenital malocclusion upon entry, that there were no service dental treatment records in the reconstructed claims file, no evaluation for complaints related to trauma or the face or jaw during service and that the discharge physical had no history of tooth or gum trouble and with acceptable dental. In addition, the June 2013 examiner opined that, as there was no documentation of congenital malocclusion upon entering service, and in the absence of any dental treatment records from his active military service, there is no evidence that a preexisting dental could have progressed or been aggravated by service. Additional service dental treatment records would provide a basis for an opinion as to whether the Veteran's claimed TMJ disorder was aggravated by a preexisting condition such as congenital malocclusion or bruxism. With regards to tinnitus, the June 2013 VA examiner opined that the Veteran's sensorineural hearing loss in the higher frequencies bilaterally was consistent with presbycusis and sufficient to account for associated tinnitus. The examiner further referenced an otolaryngology textbook which found that the association between tinnitus and somatic pathology of the head and neck was underscored by the reported higher incidence of tinnitus in individuals with TMJ and normal audiometric thresholds compared with controls. Initially, the Board points out that the Veteran's dental examination were found to be acceptable on induction examination. Thus, as there is no documented notation at entrance as to the existence of any dental disorder, the Board finds that the presumption of soundness is for application. See 38 U.S.C.A. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). As explained in the June 2013 VA opinion, it would be mere conjecture to opine as to whether the Veteran suffered from a congenial malocclusion, which would have clearly and unmistakably existed prior to service, that was aggravated beyond its natural progression by an in-service injury, event or illness as the only service dental were limited to his enlistment and discharge physical statements of dental being acceptable. The Board notes that while the June 2013 VA examiner only had access to the Veteran's rebuilt file and copies of his service treatment records, the original service treatment records which were later associated with the rebuilt file do not contain additional dental records. As the medical opinions, lay statements, and medical evidence of record do not meet the formidable evidentiary burden of clear and unmistakable evidence of preexisting dental disability, there is therefore no corresponding burden on VA's part to establish, by clear and unmistakable evidence, that any preexisting dental disorder were aggravated during service. As the presumption of soundness has not been rebutted, the claim for service connection for a TMJ disorder essentially becomes one for service connection based on service incurrence. See 38 U.S.C.A. § 1111; Wagner, 370 F.3d at 1094-96 (holding that where the presumption of soundness is not rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). The Board also points out that, as a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, such as his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is also competent to testify about observable symptoms or injury residuals, such as tinnitus (i.e., ringing in his ears). See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, ringing in the ears, or tinnitus, is the type of disability for which he competent to establish on the basis of lay assertions, alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds no reason to question the veracity of the Veteran's assertions that he currently experiences tinnitus. Here, the Veteran's service treatment records reflect no complaint, finding, or diagnosis pertinent to a TMJ disorder or tinnitus during service. With respect to post-service medical records, the first evidence of either disability was in an August 2009 opinion from Dr. D. M.. As noted above, there is nothing in the Veteran's service records to indicate that a TMJ disorder or tinnitus had its onset during service or shortly after service. Rather, the first medical evidence of such a TMJ disorder and tinnitus was in January 2008, approximately 34 years after service discharge. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board also notes that the Veteran has not been consistent in his assertions regarding the onset and presence of such a TMJ disorder and tinnitus. He reported being in good health in his June 1971 service discharge examination and no abnormalities were found. During his October 2009 VA examination, the Veteran reported that the onset of tinnitus occurred two years ago (i.e. 2007). He also reported that his tinnitus began "three weeks ago" in a March 2008 private treatment note. In contrast, he reported that his tinnitus began during service in a July 2012 statement. Moreover, while the Veteran has asserted that he was not permitted to seek treatment after being struck in his jaw by his drill sergeant during basic training, he made no complaints of such injuries at service discharge and indicated that he sustained no illnesses or injuries other than those disclosed in the examination. Moreover, the Board notes the October 1972 letter from the Veteran to his current wife describing an incident in which he was not able to hear for several days after a tank shell went off near him and that he did not report hearing ringing in his ears as a result of this incident. In light of these contradictory statements, any current assertions as to experiencing either a TMJ disorder or tinnitus during service or continuously since service, advanced in furtherance of the appeal, are deemed not credible. The Board also notes the Veteran's wife's June 2012 letter, which indicated she had been involved with the Veteran since January 1972 (i.e., the Veteran's entrance into service), that they were involved during his entire time in service, that the Veteran had informed her of the incident with the drill sergeant while on leave from basic training and that he experienced ear ringing and audible jaw popping during their marriage. However, in a March 2012 letter, she wrote that she was not dating the Veteran during his basic training, but he had reported this incident to her shortly thereafter, and that he had experienced ear ringing and audible jaw popping during their marriage. The Veteran's wife's statements regarding the length of the time in which they have been acquainted have been inconsistent; moreover, she has not stated that the Veteran suffered from a TMJ disorder or tinnitus symptoms continuously since service. These statements therefore have limited probative value. Moreover, on the question of whether each disability is medically related to his service, the Board notes that the record includes conflicting opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this instance, for reasons to be discussed below, the Board finds the opinion from the VA examiner in June 2013 to be most probative in discussing these claims. The VA examiner, in the June 2013 opinion, declined to find a nexus between the Veteran's TMJ disorder and his service, noting that there were no in-service evaluations related to facial or jaw trauma, that the discharge physical found the Veteran's dental to be acceptable and that the Veteran did not seek treatment for his purported in-service trauma. This examiner also attributed the Veteran's tinnitus to his nonservice-connected hearing loss (presbycusis). As this opinion was based on consideration of his documented medical history and assertions, including physical examinations, and is supported by stated rationale, the Board accepts this opinion as probative of the medical nexus question. By contrast, Dr. D. M. opined in an August 2009 opinion that the etiology of the Veteran's TMJ disorder was the injury from a drill sergeant during service in 1972 and related his tinnitus to the TMJ disorder. However, no rationale was provided in support of this opinion. A medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two-" a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In addition, this provider failed to address the fact that the Veteran reported both a post-service and a service onset for his tinnitus. The August 2009 opinion is therefore being afforded little, if any, probative weight. See Nieves-Rodriguez, supra; see also Stefl, supra. In addition, the Board notes the opinion of the July 2012 VA examiner that it was impossible to determine without resorting to mere speculation whether the Veteran's current TMJ symptoms had their onset in or were otherwise related to his service. However, as this examiner failed to provide an etiological opinion, this opinion is being afforded to no probative weight. Furthermore, as for any direct assertions by the Veteran, his wife and/or his representative that there exists a medical relationship between the Veteran's TMJ disorder and/or tinnitus and service, the Board finds that no such assertions provide persuasive evidence in support of the claims. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individuals is shown to be other than a layperson without the appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion the medical matter upon which these claims turn. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claims for service connection for a TMJ disorder and tinnitus must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As a final point, the Board points out that, to the extent that the Veteran contends that service connection for his tinnitus as secondary to hearing loss or a TMJ disorder or that the August 2009 private opinion has suggested service connection on a secondary basis is warranted, there is no legal basis of granting service connection for tinnitus on this basis. The Board denied service connection for hearing loss in its June 2012 decision and has denied the claim for service connection for a TMJ disorder herein. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Thus, the matters of service connection for tinnitus as secondary to hearing loss and/or a TMJ disorder are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a TMJ disorder is denied. Service connection for tinnitus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs