Citation Nr: 18150543 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-41 501 DATE: November 15, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for two weeks in July 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veteran Affairs (VA). Service Connection Under the relevant laws and regulations, 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, 1131. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154 (a). 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 veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for tinnitus The Veteran asserts an entitlement to service connection for tinnitus due to his military service in July 1998. The Veteran contends that his responsibilities during basic training caused his tinnitus. Based on the evidence of record, the Board determines that service connection is unwarranted. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran asserts that he was diagnosed with tinnitus before serving in the Army, but that the tinnitus resolved before entrance into service. Service treatment records do not reflect complaints of, treatment for, or a diagnosis related to tinnitus. Moreover, he was not diagnosed with tinnitus until June 2015, While the Veteran is competent to report experiencing symptoms of tinnitus since service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s statements are inconsistent with his reports in contemporaneous treatment records, which show that his hearing in both ears was normal and that he denied experiencing tinnitus symptoms until after his separation from service, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran stated that he remembers experiencing ringing in his ears after sustaining concussions from playing football in high school. He claimed that the ringing noise resolved itself prior to his entry in the military. Subsequent to his departure from the military, the Veteran claimed that the ringing in his ears commenced again and stemmed from his duties during basic training. His duties in basic training included load work, rifles range, simulated combat training, and exposure to high intense military noise exposure while working with military vehicle engines. During an October 2015 VA audiology examination, the examiner concluded that the Veteran’s tinnitus is not at least as likely as due to military noise exposure. The examiner cited the fact that as there was no objective evidence of noise injury, there is no basis on which to conclude that the claimed tinnitus is associated with such injuries. The examiner further stated that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure is speculative. In order to give an opinion that tinnitus is related to noise trauma, the examiner stated that they would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. The Board acknowledges the conclusion provided by a private medical provider. The medical provider determined that the Veteran’s tinnitus as being consistent with significant noise exposure, and stated that some portion of the Veteran’s bilateral tinnitus is at least as likely as not caused by exposure to acoustical trauma from military service. However, the Board has determined that the VA examination is significantly more probative than the private examination. The medical provider based their opinion on the fact that the Veteran reported significant noise exposure and the onset of his tinnitus as occurring during military service. However, it is critical to note that although the medical provider noted the Veteran’s three years of military service, he was only on active duty for two weeks. There are no indications that the Veteran’s tinnitus manifested during his two weeks of active duty or during a period of ACDUTRA. Furthermore, in his June 2015 appointment, the Veteran actually stated that he has had tinnitus since high school, contradicting the basis of the medical opinion. During that appointment, the medical provider stated that his tinnitus may stem from past childhood ear infections. Therefore, the Board gives more probative weight to the VA examination, which establishes that these symptoms are not attributable to the Veteran’s military service. VA treatment records do not mention the Veteran’s symptoms of tinnitus. The Veteran’s lay statements and service record fail to provide a nexus between the Veteran’s tinnitus and his service in the Army. Further, the record suggests that the Veteran’s tinnitus may have even arisen prior to military service. While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including that ringing in his ears occurred while he was in service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the advanced medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. McGee, Law Clerk