Citation Nr: 18146049 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-15 34 DATE: October 30, 2018 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for diabetes is remanded. FINDING OF FACT The Veteran’s tinnitus did not have its onset in service or within one year from separation from service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.§§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1979 to September 1979. He also had additional service with the Army National Guard from December 1978 to December 1985 with unverified periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). 1. Entitlement to service connection for tinnitus is denied. The Veteran seeks service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) medical evidence 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 the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a current diagnosis of tinnitus. He reports tinnitus in his lay submissions and to the November 2015 VA examiner. Tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s service treatment records (STRs) from his active duty are not available for review. However, the Veteran’s military occupational specialty (MOS) as an industrial fire infantryman indicates he was likely exposed to acoustic trauma during service. See DD 214 Form. Accordingly, exposure to in-service acoustic trauma is conceded. 38 U.S.C. § 1154(a). However, the November 2015 VA audiologist opined that the Veteran’s current tinnitus is less likely than not caused by or a result of his military noise exposure. In support of his opinion, he explained that the Veteran’s subjective report of an onset of tinnitus occurred 30 years post-active duty and 25 years post- National Guard service. In this regard, the Veteran does not assert that his tinnitus had an onset during service or within one year of service. He reported to the November 2015 VA audiologist that his tinnitus began “four or five years ago” or around 2010. Lastly, the VA audiologist noted that the Veteran engaged in post-service civilian employment in the construction industry and opined that the evidence suggests a post-service etiology. Thus, the only competent and credible opinion of record, that of the November 2015 VA audiologist, is against the claim. Moreover, the Veteran’s own lay assertions are against the claim as he did not specifically assert an in-service onset of tinnitus or onset within one year of service separation from active duty or National Guard service. Although he, after the examination, reported that he didn’t fully understand the question and stated that he had experienced tinnitus for many years, the record reflects he specifically denied experiencing tinnitus at private treatment encounters in September 2011 and January 2012. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements). As the preponderance of the evidence is against the claim thus, the benefit of the doubt doctrine does not apply and service connection for tinnitus is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability is remanded. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability is remanded. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension is remanded. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a TBI is remanded. 6. Entitlement to service connection for diabetes is remanded. The Veteran asserts that his left hip, left knee, hypertension, and TBI disabilities were incurred during his National Guard service. Specifically, he maintains that: his TBI is a result of being hit in the head with a pool stick while stationed at Fort Bragg in the spring of 1984 and was treated at Duplin General Hospital; his left knee injury was sustained while he was in a fox hole at Fort Bragg in July 1985 and was treated at Fort Bragg Medical Center; his left hip injury is due to unloading beach mats weighing 100 pounds off of a truck; and he has had high blood pressure since 1985 and has been treated by a private physician, Dr. K. S., since that time. See February 2010 Veteran Statement. Although a June 2010 Memorandum reflects that the North Carolina Army National Guard had provided all personnel records available, and a finding of unavailability has been provided in regard to treatment records from the Veteran’s period of active duty, the Board finds remand warranted to determine if any records of medical treatment or evaluation are available for any periods of the Veteran’s ACDUTRA and/or INACDUTRA from December 1978 to December 1985. As evidence for his diabetes claim could become available from this development, adjudication on his diabetes claim is deferred pending this development. The matter is REMANDED for the following action: 1. Obtain a copy of all outstanding service treatment records associated with the Veteran’s Army National Guard service, including any records from Womack Army Medical Center, Duplin General Hospital, and Fort Bragg Medical Center. If unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Obtain any outstanding VA treatment records. 3. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records, to specifically include records from Dr. K.S. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. (Continued on the next page)   4. Conduct all other development deemed necessary based on the results of the above. 5. Readjudicate the appeal. If any benefits remain denied, issue the Veteran an appropriate SSOC prior to returning the appeal to the Board. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel