Citation Nr: 18154959 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-53 234 DATE: December 4, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The most probative evidence of record reflects that tinnitus was not present in service, did not manifest to a compensable disabling degree within the first year after the Veteran completed his service, and is not related to his military service. CONCLUSION OF LAW The criteria establishing entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1154 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in relevant part, denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran submitted a notice of disagreement (NOD) in January 2015 contesting the denial of service connection for both bilateral hearing loss and tinnitus. A statement of the case was issued in October 2016. The Veteran perfected his appeal in regard to service connection for tinnitus with the timely submission of a VA Form 9 (Substantive Appeal) later in October 2016. As noted above, the Veteran initially included the issues of entitlement to service connection for bilateral hearing loss and tinnitus in his January 2015 NOD. However, the subsequent VA Form 9 submitted in October 2016 limited the appeal to the Board to the single issue of entitlement to service connection for tinnitus. The Veteran stated that he was only appealing the denial of that claim and wrote, “While I understand that hearing is not significant enough, it does not mean I don’t have tinnitus.” Although the January 2017 Form 8 included the issue of entitlement to service connection for bilateral hearing loss, this form is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over appeals. 38 C.F.R. § 19.35 (2017). Accordingly, the issue of entitlement to service connection for bilateral hearing loss is not before the Board. 1. Entitlement to service connection for tinnitus The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Legal Criteria Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Organic diseases of the nervous system, including tinnitus in some circumstances, are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015) (Tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Factual background Service treatment records (STRs) are silent to complaint or diagnosis related to tinnitus. Upon separation from service, a Report of Medical Examination found no defects related to hearing loss or the ears. In an accompanying Report of Medical History, the Veteran reported hay fever but denied ear trouble, running ears, and hearing loss. He reported excellent health. Post-service treatment records reflect that the Veteran first reported ringing in his left ear in June 2011. He submitted a claim seeking entitlement to service connection for bilateral tinnitus in July 2013. In October 2013, he submitted a statement in which he attributed his tinnitus to being next to fellow servicemen firing M-16s, M-60s, and .50 caliber machine guns. He also described being in proximity to five mine explosions during his service in Vietnam. His DD Form 214 confirms a military occupational specialty code involving armor, along with badges for rifle marksmanship and first-class gunner status. He also earned a combat infantry badge. The Veteran underwent VA examination in conjunction with his claim in September 2014. He reported recurrent tinnitus. The examiner indicated that the Veteran first experienced temporary buzzing while in the service from the concussion of explosions. He now reported constant ringing initially noted after leaving Vietnam. The examiner opined that the current tinnitus was not related to the Veteran’s experiences in service, but more likely a symptom related to his hearing loss. She stated that tinnitus is a known symptom of hearing loss and that the Veteran did not show hearing loss upon separation from service. In his October 2016 VA Form 9, the Veteran described his time with a mechanical unit with armored personnel carriers in Vietnam, including experiencing deafening noise from both small and large weaponry. He recalled ringing in his ears after firing hundreds of rounds from a .50 caliber gun. Analysis The Veteran asserts that he developed bilateral tinnitus as a result of his military service, including repeated exposure to weapons fire, explosions, and armored vehicles. As an initial matter, military personnel records confirm the Veteran’s service in Vietnam, including combat engagement and working in an armored unit. Such duty would, by necessity, involve exposure to loud noise. His lay testimony regarding substantial noise exposure during his service is consistent with the personnel records. Thus, the Veteran’s exposure to hazardous noise levels during his service is substantiated in this case. 38 U.S.C. § 1154. However, as explained herein, the Board finds that service connection is not warranted due to a lack of nexus between the current tinnitus experienced by the Veteran and the substantiated noise exposure in service. As stated above, STRs disclose no complaints or assessment of tinnitus in service. Post-service treatment records first reflect a complaint of ringing in the left ear in June 2011. No diagnosis was made at the time. The Veteran underwent VA examination in September 2014, as reflected above. Following review of the claims file and examination of the Veteran, the examiner opined that the tinnitus was more likely a symptom of the current hearing loss than a remnant of the noise exposure in service. She noted that the Veteran’s hearing was found to be within normal limits at the time of separation from service. The Board notes that, during the September 2014 VA examination, the Veteran described temporary buzzing while in service with the onset of constant buzzing after his service in Vietnam. He contends that the current constant tinnitus is the result of the noise exposure in service. He is competent to report ringing in the ears and hearing-related symptoms he has experienced because this requires only personal knowledge, not medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469. However, he is not competent to opine on the complex medical question of etiology, particularly when he does not allege and the record does not show persuasive evidence of continuity of symptomatology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The lay and medical evidence contemporaneous to service and current lay and medical evidence do not show in-service incurrence of chronic tinnitus that persisted in the years following his active duty. Cf. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In this case, the VA examiner’s opinion is given significant weight in regard to the nexus between the symptoms described by the Veteran and the in-service noise exposure. The examiner’s opinion is considered probative, as it is uncontroverted by any evidence of record, apart from the Veteran’s own implied assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data). Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Finally, the Veteran’s tinnitus cannot be service connected on a presumptive or continuity of symptomatology basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. Chronic diseases, including tinnitus due to acoustic trauma, may be service connected on the following bases: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis or symptoms thereof within a year of separation; or 3) continuity of symptomatology. As described above, there was no diagnosis of tinnitus in service or within a year of separation. Additionally, the record does not contain persuasive evidence weighing in favor of continuity of symptomatology. Indeed, it was not until 2011 that tinnitus was first reported. To the extent that the Veteran contends that the condition began in service, this contention is inconsistent with the objective medical evidence of record. Accordingly, service connection is not warranted on a presumptive or continuity of symptomatology basis. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service to our nation for which the Board is grateful. However, after careful consideration, the Board concludes that the probative evidence of record weighs against a finding that the Veteran’s tinnitus is related to his military service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.