Citation Nr: 18150323 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-36 617 DATE: November 15, 2018 ORDER Service connection for tinnitus is granted. Service connection for erectile dysfunction, as secondary to service connected post-traumatic stress disorder (PTSD), is denied. FINDING OF FACT 1. The Veteran’s tinnitus disability began during his active service. 2. It has not been reasonably shown that the Veteran’s erectile dysfunction was caused by his service connected PTSD. CONCLUSION OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Service connection for erectile dysfunction, as secondary to service-connected PTSD, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to August 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Newnan, Georgia Department of Veteran’s Affairs (VA) Evidence Intake Center. 1. Service connection for tinnitus. I. Legal Criteria “Service connection” means that a Veteran has a disability resulting from a disease or injury that began in or was aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Normally, to establish direct service connection, there must be evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal link (“nexus”) between the in-service disease or injury and the current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus as an organic disease of the nervous system, service connection may alternatively be established with evidence that the chronic disease began during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of the same symptoms; and (3) a causal link between the present disability and the continuous symptoms. Fountain, 27 Vet. at 263-64. For a medical nexus opinion to be adequate for the Board to use as evidence, it must consider the Veteran’s prior medical history and examinations and support its ultimate conclusion with a thorough explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”); see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Veterans are qualified (“competent”) to testify to the presence of observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board is required to weigh the evidence of record, including the medical evidence, to make factual determinations. Cf. Evans v. West, 12 Vet. App. 22, 30 (1998). II. Factual Background The Veteran served during an in-country tour of duty during the Vietnam War. He reported that he served as a demolition explosives expert during this time and was exposed to severe noise hazards, including the detonation of explosives and prolonged chainsaw use. The Veteran also reports that he has had ringing in his ears from service and this ringing has continued to worsen to a severe level until the present day. The Veteran has provided additional lay statements that he has to use a radio, especially at night, to help mask the ringing noise so he can concentrate and sleep, but this is becoming less and less effective. The Veteran was afforded a VA Compensation and Pension (C&P) examination for tinnitus in September 2016. The audiologist opined that because “[m]ost tinnitus is associated with hearing loss” and the Veteran did not demonstrate hearing loss in service, the Veteran’s tinnitus is likely related to his recently diagnosed hearing loss after service. See September 2014 C&P examination. III. Analysis Here, there is highly probative evidence of a presently existing tinnitus disability satisfying the first element of service connection. The Veteran has provided competent and credible lay statements that he has ringing in his ears. The subjective nature of the observable symptoms of tinnitus, e.g. ringing or buzzing in the ears, is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran’s statements are competent as to his personal lay observations of ringing in the ears and his credibility is not doubted. Furthermore, the September 2014 C&P examination does not dispute that the Veteran presently has tinnitus. Thus, the requirement of a current disability is established. For the second element, there is highly probative evidence that the Veteran experienced acoustic trauma during service. The Veteran provided lay statements that he served as a demolition explosives expert and was exposed to severe noise hazards, including the detonation of explosives and prolonged chainsaw use. Again, the Veteran’s statements are competent as to his lay observations while serving on active duty and his credibility is not doubted. The Veteran also provided other evidence, including photographs taken during his time in Vietnam documenting his use of chainsaws and detonating explosives. This evidence is competent and corroborates with his lay statements. Therefore, the Board holds the requirement of an in-service injury of ear trauma is established. Lastly, there is evidence of a causal link between the present disability and the in-service event, namely competent and credible evidence establishing the onset of tinnitus in-service following exposure to hazardous noise, which continued to the present. The Board also holds the September 2014 C&P opinion with regard to tinnitus is not legally sufficient evidence to negate the Veteran’s statements. The audiologist concluded that because “[m]ost tinnitus is associated with hearing loss” and that, because the Veteran did not demonstrate hearing loss during service, therefore his tinnitus did not begin in service. First, service connection claims are not limited to be proven by the most common theory and the fact that many cases of tinnitus are associated with hearing loss does not preclude service connection in this particular case. Second, the negative nexus opinion is based on an inaccurate factual premise because the audiologist apparently disregarded the Veteran’s statements about tinnitus beginning in service and persisting to the present day. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”). Furthermore, unlike hearing loss (which is a complex disability that requires an audiologist’s opinion to identify the severity) tinnitus is a disability that can be diagnosed by the Veteran’s independent lay observation. Thus, the Veteran’s statements of when the ringing in his ears began, and whether or not it has persisted throughout the years, carries greater probative weight in this instance. Accordingly, the Board finds that the evidence supports a finding that the Veteran’s tinnitus disability began during service and has persisted since that time. Therefore, service connection for tinnitus is warranted. 2. Service connection for erectile dysfunction. I. Legal Criteria Establishing secondary service connection requires evidence of: (1) a current disability for which the secondary service connection is sought; (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 446 (1995). II. Factual Background The Veteran’s VA medical treatment records confirm that he has been prescribed Sertraline for his service-connected PTSD. An August 2014 Disability Benefits Questionnaire (DBQ) confirmed that the Veteran has been diagnosed with erectile dysfunction and noted that reactions to Sertraline may include sexual disorders such as erection and ejaculation dysfunctions and decreased sex-drive. However, the DBQ clinician opined that the Veteran’s erectile dysfunction was more likely caused by tobacco use, vascular disease, high cholesterol, and being over 60 years old. III. Analysis The Board acknowledges the Veteran takes Sertraline for his service-connected PTSD and that this medication may cause erectile dysfunction. Unfortunately, in this case, the evidence does not establish that the Veteran’s erectile dysfunction is at least as likely than not (a 50 percent probability) caused by Sertraline. The August 2014 DBQ clinician considered the Veteran’s prior medical history and treatment by reviewing the case file and noted that the Veteran has multiple non-service-connected risk factors for erectile dysfunction, such as tobacco use, vascular disease, high cholesterol, and being over 60 years of age (the clinician noted that males over the age of 60 are four times more likely than the general male population to have erectile dysfunction.) Furthermore, the examiner evaluated the Veteran’s use of Sertraline, and its side effects, along with the Veteran’s non-service-connected risk factors, and provided a thorough and well-explained rationale for the negative nexus opinion. Therefore, the Board finds this opinion to be highly probative and persuasive. Additionally, there is no medical opinion or lay evidence in the record to the contrary for the Board to consider. In conclusion, the preponderance of the evidence reflects that the Veteran’s erectile dysfunction is more likely to be caused by the numerous other non-service-connected risk factors and not the medication that the Veteran takes for his service-connected PTSD. Thus, the benefit of the doubt rule does not apply and secondary service connection cannot be granted. [CONTINUED ON NEXT PAGE] The Board is grateful for the Veteran’s honorable service and regrets that a more favorable decision cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Arritt, Associate Counsel