Citation Nr: 18153496 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-40 703A DATE: November 28, 2018 ORDER Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran currently has tinnitus. 2. The Veteran was exposed to loud noise during service. 3. Symptoms of tinnitus were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 4. The current tinnitus manifested many years after service separation and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1995 to December 1998. This matter is on appeal from a January 2015 rating decision issued by the Regional Office (RO) in Seattle, Washington. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326. The duties to notify and assist have been met. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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). The Veteran currently has tinnitus (as organic diseases of the nervous system) which is “chronic” diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). Where a veteran served ninety days or more of active service and the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus (organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. §§ 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. 38 C.F.R. § 3.307. 1. Service Connection for Tinnitus The Veteran contends that he currently has tinnitus and, at the January 2015 VA examination, he asserted that he has been experiencing symptoms of tinnitus since discharge from service. The Veteran has consistently claimed his military occupational specialty (MOS) as an airman exposed him to loud noises and the ear protection he wore was inadequate. See August 2014 Fully Developed Claim, April 2015 Notice of Disagreement. The Board finds that the Veteran currently has tinnitus. The January 2015 VA audiometric examination report reflects a diagnosis of tinnitus. In addition, the Veteran has also reported that he has tinnitus. See August 2014 Fully Developed Claim, April 2015 Notice of Disagreement, January 2015 VA Examination; Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Next, the Board finds that the Veteran was exposed to in-service loud noise. The DD Form 214 reflects that the Veteran’s MOS was an airman. According to several “Evaluation Report & Counseling Record” reports, the Veteran was responsible for the launch, recovery, ground handling, inspection, and general servicing of several aircrafts. See September 1996 Evaluation Report & Counseling Record, January 1998 Evaluation Report & Counseling Record, July 1998 Evaluation Report & Counseling Record, November 1998 Evaluation Report & Counseling Record. The Board credits the Veteran’s testimony about noise exposure during active duty service. The weight of the lay and medical evidence demonstrates that symptoms of tinnitus were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. Service treatment records demonstrate that tinnitus was not noted on the October 1995 service entrance examination, and there are no complaints tinnitus during service. The first report of symptoms of tinnitus are in the August 2014 VA treatment records and then again in the August 2014 Statement in Support of Claim for the purpose of seeking benefits. These two complaints were made approximately 18 years after separation from service in 1998. At the January 2015 VA examination, the VA examiner found that the Veteran had tinnitus. The Veteran reported that he noticed the onset of intermittent, occasional ringing in his ears for shorts periods of time after leaving service. The VA examiner opined that the tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The VA examiner’s rationale is that the onset of the occasional ringing in the ears began subsequent to military service and that tinnitus from overexposure to noise creates tinnitus immediately and is constant. The Board finds this examination highly probative. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence of record weighs against the service connection claim for tinnitus on the basis of direct and presumptive service connection. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel