Citation Nr: 1615901 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 12-17 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified via videoconference before the undersigned Veterans' Law Judge in February 2016. A transcript of this hearing is contained in the claims file. In this decision, the Board is denying the Veteran's claim for service connection for tinnitus. This is based on a finding that that evidence against the Veteran's claim, including a lack of treatment or complaints for approximately 24 years after discharge, extensive post-service noise exposure, and a negative VA medical opinion, outweighs the Veteran's statements concerning his symptoms and his belief these symptoms are a result of his work with artillery during active duty. FINDING OF FACT The Veteran's tinnitus did not manifest during service or within one year from separation from military service. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) 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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). Tinnitus is considered a chronic condition under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). Service connection may also be established with certain chronic diseases, including tinnitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran's STRs do not contain any entries concerning symptoms or complaints involving his ears. His August 1970 hardship separation examination indicated his ears were normal. The audiometric testing performed was largely normal outside of a pure-tone threshold of 35 decibels for the left ear at 4000 Hz. The Veteran underwent a VA audiological examination in October 2004. The examiner indicated the claims file was reviewed. The Veteran's chief complaints included ringing in his ears. He reported military noise exposure associated with artillery fire. He also reported post-service occupational noise exposure while working as a heater repairman for three years and as a fireman for twenty-three years. He further stated there was recreational noise exposure as a result of hunting and working with power tools. Regarding the tinnitus, the Veteran reported it was present bilaterally and happened weekly. He stated it began in 1971. Audiometric and speech recognition testing was performed and the results documented in the examination report. The examiner eventually opined that the Veteran's tinnitus was not caused by or a result of his military noise exposure. As rationale, he cited the Veteran's normal audiological testing found on his separation examination and indicated that the tinnitus was more properly attributed to his long history of post-military noise exposure. At the Veteran's February 2016 Board hearing, he provided further testimony regarding his tinnitus. He stated that in the military, he worked with heavy artillery including an eight-inch self-propelled gun. He said this vehicle's engine was very loud and he was exposed to excessive noise often while setting up the weapon to be fired. He also stated that when the gun fired it produced excessive noise and sometimes the provided hearing protection would fall off his ears. He stated that he received in-service treatment for headaches resulting from the firing of this weapon and that he was also experiencing ringing in his ears when seeking treatment for these headaches. With regards to his normal separation examination, the Veteran and his representative both indicated that it was a hardship discharge and he was in a hurry to get home, therefore he did not report any ear-related conditions. After a thorough review of the claims file, the Board concludes that the Veteran's tinnitus did not manifest during service or within one year of his discharge. The Board acknowledges the Veteran's statements that the condition began in-service and was related to the operation of heavy artillery. He is certainly able to report tinnitus symptoms and his DD-214 indicates a military occupational specialty in the field artillery. However, to the extent that the Veteran contends that his tinnitus began during service, the Board concludes that the weight of the evidence shows otherwise. First, his STRs are devoid of discussion, treatment, or complaints of tinnitus. His August 1970 separation examination indicated that he had normal ears and he did not self-identify any ear condition or problem at the accompanying Report of Medical History. There is no complaint of tinnitus or any like-symptom until the October 2004 VA audiological examination-34 years after his discharge. The Veteran's representative stated at the Board hearing that there was a compensation and pension examination in the record "that shows that in 1971 he was complaining about the tinnitus in his ears." It appears that he was referring to the October 2004 VA examination report where, under the "Tinnitus" section, the examiner entered "1971" for the date of onset. However, this section appears to be addressing the Veteran's subjective complaints and statements concerning the condition and not the examiner's conclusions. As stated above, the examiner ultimately provides a negative opinion concerning the tinnitus. There is no document from 1971 that shows a complaint of or treatment for tinnitus. Additionally, the Veteran testified he sought treatment in-service for headaches, a symptom he associated with the tinnitus. Review of the STRs does not reveal any entry involving complaints of or treatment for headaches. There are multiple entries concerning the Veteran's eyes, but these make no mention of headaches or any complaint pertaining to the ears. Furthermore, the lone medical opinion of record is against finding a relationship between the Veteran's tinnitus and his active duty service. The Board finds the VA examiner's opinion to be competent and highly probative evidence. The opinion was properly supported by medically sound reasoning, namely that the Veteran did not exhibit symptoms while on active duty and that the condition was more likely related to his long, post-military history of noise exposure. This includes his reported 23 years working as a fireman. With the most weight attached to the October 2004 VA examiner's opinion, the preponderance of the evidence is against this claim for service connection for tinnitus. As such, the benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. The Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The RO provided the Veteran with proper notice regarding his service connection claims in September 2010. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records and VA treatment records and added them to the claims file. The Veteran was afforded a wholly adequate VA examination for his claimed tinnitus condition. This audiological examination occurred in October 2004. While this was prior to the Veteran's filing of the current tinnitus claim, this audiological examination report, when considered along with the other relevant evidence in the file, provides adequate comment regarding the etiology of the Veteran's tinnitus. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). In consideration thereof, the Board finds that a remand for an additional VA examination and/or medical opinions is not warranted regarding the claim adjudicated herein. Moreover, in February 2016 hearing before the undersigned, the presiding Veterans Law Judge clarified the issues on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of the claim. These actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor his attorney has identified any additional evidence relevant to the claims adjudicated herein. Hence, no further notice or assistance was required in order for the Board to perform the above appellate review without prejudice to the Veteran. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs