Citation Nr: 18156208 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-49 951 DATE: December 7, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus was not present in service or manifest to a compensable degree within one year of service discharge 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, 1113, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Air Force from November 1953 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The most recent adjudication of this claim was in a statement of the case (SOC) issued in September 2016. Additional evidence was subsequently added to the record since then. In a November 2018 statement, the Veteran waived his right to initial review of this evidence by the AOJ. See 38 C.F.R. § 20.1304 (c). The Veteran seeks service connection for tinnitus, which he asserts is the result of exposure to excessive noise during service. He cannot recall when the tinnitus started, but reports that he has had ringing in his ears for years and that, as far as he knows. it first started during service. See VA Form 21-4198, Statement in Support of Claim, dated July 2, 2015. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). As such, the central issue that must be resolved now is whether it originated during service or is otherwise related to service. 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA, which includes tinnitus. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s DD-214 lists his military occupational specialty (MOS) as that of an X-ray technician, which involves a low probability of exposure to hazardous noise. See M21-1, III.iv.4.D.1.b. Additional service personnel records show that he initially served as a jet engine mechanic for two years. Therefore, his account of some amount of military noise exposure is consistent with the facts and circumstances of his service. 38 U.S.C. § 1154(a). Here, the Veteran served on active duty for 20 years, but his service treatment records are silent for findings or complaints of tinnitus or any such relevant symptoms. Likewise, there is no medical evidence suggesting that tinnitus was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. There is also insufficient evidence of continuity of symptoms to enable an award of service connection under the provisions pertaining to chronic diseases. Fountain, supra. Available post-service clinical records (which begin in 1989) are negative for complaints, or findings, of ringing ears. See progress notes from Martinsburg VA Medical Center (VAMC). More recent records show that in September 2005, the Veteran established care at a different VA facility and underwent a work up as a new patient. Although current medical problems were addressed, he did not then report any difficulty with ringing in his ears either currently or in the past, and none was noted by the examiner. See progress notes from Kerryville VAMC. The first pertinent clinical records associated with the claims file is a May 2015 VA examination report, 42 years after service discharge. At that time, the Veteran reported his tinnitus began 5-10 years ago. After reviewing the file (including the Veteran’s history of in-service noise exposure), the audiologist concluded that the Veteran’s tinnitus was less likely than not caused by, or a result of, military noise exposure because he reported its onset well his service separation. The claims file contains no competent medical evidence refuting this opinion. See also August 2018 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. Based on the evidence in this case, the Board finds that service connection for tinnitus is not warranted. While the Veteran was exposed to some degree of acoustic trauma during service, that fact alone does not establish a basis for the grant of service connection. Rather, the noise exposure must cause the tinnitus. As noted above, service treatment records are entirely negative for complaints of such audiological problems, and there is a lengthy period between service and the first documented complaints decades later. Also, by his own admission at his VA examination in May 2015, the Veteran did not experience tinnitus until 5-10 years ago (approximately 2005-2010), which is still more than 30 years after service. In other words, his own account of the history of his tinnitus does not implicate a service onset. He now argues that he misspoke when discussing the onset of tinnitus with the VA audiologist and that instead he should have said that it had worsened in the last 5-10 years. However, this recent statement is contradicted by post-service treatment records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to tinnitus. See AZ v. Shinseki, 731 Fed. Cir. 1303 (2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). If the Veteran had indeed experienced a worsening of tinnitus in 2005, he would have been expected to have reported such symptomatology, when establishing care as a new patient at that time. His failure to do so is persuasive evidence that he was not then experiencing continuous tinnitus from the time of his discharge from service in 1973. As for any assertions by the Veteran, or his representative, that despite the onset of tinnitus years after service ended it is nevertheless etiologically related to service, such an assertion treads into the realm of medical expertise. Although lay persons are competent to provide opinions on some medical issues [Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)] as to the specific issue in this case, the process of determining the etiology of tinnitus (as distinguished from merely reporting the presence of symptoms) falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons not competent to diagnose certain complex internal processes, such as cancer). As the Veteran here is shown to be a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. Id. The Board has considered the journal article, referenced by the Veteran’s representative, that discusses the development of tinnitus after noise exposure in mice. See November 2018 Informal Hearing Presentation. However, this article is not accompanied by a medical opinion and does not consider the specific medical history of this Veteran. Without consideration by a clinical professional of the specific nature and circumstances of the Veteran’s tinnitus and consideration of his unique medical history, the information is of little value. Thus, the Board does not find it of relatively equal probative weight to the VA opinion and VA treatment records discussed above. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Accordingly, the preponderance of the evidence is against the claim for service connection for tinnitus. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant