Citation Nr: 1804980 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-19 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1968 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs, Regional Office, located in Reno, Nevada (RO), which in pertinent part, denied the benefit sought on appeal. In November 2014, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities. A copy of the hearing transcript has been associated with the claims folder. The Board remanded the matter in June 2016 to the RO (via the Appeals Management Center (AMC)) for additional development. FINDING OF FACT The preponderance of the competent evidence is against a finding that the Veteran's tinnitus had its onset during military service, was manifest within one year after discharge from service, or is otherwise related to such service, to include as proximately caused or aggravated by service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist VA's duty to notify was satisfied prior to the RO's initial decision by way of notification provided to the appellant with his July 2012 Fully Developed Claim Form (VA 21-526EZ) that informed him of his duty and VA's duty for obtaining evidence. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination and medical opinion reports. Pursuant to the Board's June 2016 remand directives, the Veteran was provided with proper notice regarding service connection on a secondary basis and a July 2017 VA medical opinion was obtain regarding entitlement on a secondary basis. Review of the record reflects that there has been compliance with the Board's remand directives and the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was provided a hearing before the undersigned in November 2014. As there is no allegation that either of the hearings provided to the Veteran were deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 2. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or preexisting disease or injury aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, it is appropriate to consider tinnitus as an organic disease of the nervous system and, therefore, subject to presumptive service connection. Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a) (2017); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has tinnitus that is related to his military service, to include noise exposure, or is alternatively caused or aggravated by his service-connected diabetes mellitus and/or coronary artery disease, including medication taken for these disabilities. In this matter, the evidence of record establishes that the Veteran has tinnitus. See July 2013 VA examination report. Moreover, the record establishes that the Veteran was exposed to acoustic trauma during active service. The Veteran's service personnel records show that he served in the military as an aircraft mechanic and he received a Combat Air Crew medal for his service in the Republic of Vietnam. The Board finds his report of noise exposure from aircraft engines, machines, guns, mortar attacks, and machines is consistent with the circumstances of his combat service. See 38 U.S.C. § 1154 (b) (2012). However, a service connection finding for tinnitus is unwarranted because the evidence indicates that the Veteran's tinnitus is unrelated to the acoustic trauma he experienced during service. The Veteran's service treatment records do not reflect any complaints, treatment, or diagnoses of tinnitus. His ears were evaluated as normal at the time of his January 1973 examination prior to separation, despite indication of some decline in hearing acuity demonstrated by the audiometric results. Post-service treatment records show that he specifically denied any problems with ringing in his ears decades after his period of service. See private yearly reports of medical history dated in July 1999, July 2002, February 2004, and April 2005. The first evidence of any problems with tinnitus comes in July 2012, when the Veteran initiated his claim for service connection. There is no evidence of tinnitus in service or within the one year presumptive period after service. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Further, the Veteran was unable to recall the onset of his tinnitus symptoms in service or until years later. Notably, he reported to the July 2013 VA examiner that the onset of his tinnitus was one year ago, and during the November 2014 Board hearing, the Veteran testified that he was unable to recall that the onset of his tinnitus was in service or years later. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The Board has considered the Veteran's representative assertion that the Veteran's tinnitus had an onset during his period of service. However, the inconsistent statements regarding onset of the disability have been provided and the assertion of onset of the disability in service is not entitled to a finding of credibility. Moreover, the only medical opinion of record weighs heavily against the Veteran's claim on a direct basis. In the July 2013 VA examination report, the VA examiner opined that the Veteran's tinnitus was unlikely related to his period of service. The VA examiner reviewer noted a review of the claims file and indicated consideration of the Veteran's entire medical history. The VA examiner supported the opinion by noting the absence of evidence of tinnitus during service and for decades after service. In particular, the VA examiner noted that the Veteran denied any ringing in his ears in 1999, 2002, 2004, and 2005 during yearly medical history reports, and the Veteran only reported a more recent onset of his tinnitus problems during clinical evaluation. The clinician also reasoned that associating tinnitus which manifested decades after service to noise exposure during service, as well as consideration of concurrent normal audiogram, was not a reasonable medical conclusion. Based on the evidence of record, the claim for entitlement to service connection for tinnitus is not warranted under 38 C.F.R. §§ 3.303, 3.307, 3.309. The credible, competent and probative evidence of record does not indicate that chronic tinnitus began during service as the result of noise he experienced during service. The evidence does not indicate onset of chronic tinnitus within the first year of discharge from service. Moreover, the evidence does not indicate a continuity of symptomatology of tinnitus following discharge from service in light of the inconsistent statements of record concerning onset of the disability. Service connection for tinnitus is therefore unwarranted on a direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. Turning to the Veteran's alternative theory of entitlement, service connection on a secondary basis, the evidence of record must demonstrate that the Veteran's current tinnitus is proximately caused or aggravated by his service-connected disability. The Veteran is currently service-connected for diabetes mellitus and coronary artery disease disabilities. The crux of the matter is whether there is evidence of a medical nexus that demonstrates the Veteran's current tinnitus is due to or aggravated by his diabetes mellitus and coronary artery disease disabilities. Here, the Board finds that a preponderance of the competent, credible and probative evidence of record is against such a finding. Specifically, the Veteran's claims folder was forwarded to a VA examiner to provide a medical opinion. After review of the Veteran's claims folder and consideration of the Veteran's medical history, the VA examiner concluded that the Veteran's tinnitus is less likely than not caused or aggravated by his diabetes mellitus and coronary artery disease disabilities, to include medication taken for these disabilities. In support of this medical conclusion, the VA examiner stated review of the medical literature, including from the Mayo Clinic, and consultation with an audiologist, did not support that the Veteran's diabetes mellitus and coronary artery disease and their medical management caused or aggravated his tinnitus condition. Although diabetes mellitus and vascular changes associated with coronary artery disease are risk factors that may lead to tinnitus, in Veteran's case, his tinnitus was more likely age associated with hearing loss given he was over 60 years of age as well as noise exposure. The July 2016 VA examiner's medical opinion report was based upon analysis of the Veteran's entire history. The competent, credible and probative evidence does not contradict the findings of the medical record. The Board acknowledges that the July 2016 VA examiner indicated that the Veteran's tinnitus was, in part, likely due to noise exposure. However, as previously determined by the 2013 VA examiner, it is not likely due to in-service noise exposure. The examiner indicated that the Veteran reported that tinnitus was occasional and that the Veteran did not feel that it was related to service as it just started last year. The Veteran testified that post-service, he was employed by the Post Office for 26 years, and his work duties included operating forklifts and other machinery. While he denied the same level of noise exposure from his post-service occupation as compared to his military service, he also denied the consistent use of hearing protection with his post-service occupation. See November 2014 Board hearing transcript, page 8. To the extent that the July 2016 VA examiner noted that tinnitus was due to noise exposure, that statement is outweighed by the findings and conclusions of the probative opinion of the 2013 VA examiner which was based on a history provided by the Veteran with regard to the onset of tinnitus and a review of the relevant records regarding a history of military, occupational and recreational noise exposure. The Board notes that the Veteran, while competent to report his symptoms both current and past, has presented no clinical evidence of a nexus between his tinnitus and his service-connected disabilities. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to his service-connected hearing loss and diabetes. That is, the Veteran is not competent to opine on matters such as the etiology of his current tinnitus. Such opinion requires medical training and is beyond the competency of the Veteran or any other lay person. As such, the Board must find that his contention with regard to a nexus between his tinnitus and service-connected disabilities is outweighed by the objective evidence of record which is absent a finding of such. Therefore, the Veteran has not presented competent and probative evidence of a link between his tinnitus and his service-connected disabilities. Element (3) of the required criteria for an award of service connection is not met, and the Veteran's claim fails on this basis. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus, to include as due to the service-connected diabetes mellitus and coronary artery disease disabilities. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs