Citation Nr: 18159701 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-22 635 DATE: December 20, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus is not linked to disease or injury incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not satisfied. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to October 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision. 1. Entitlement to service connection for tinnitus is denied. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999). 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 of chronicity of the disease 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 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, including tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Gilbert, 1 Vet. App. at 55; see also Wise, 26 Vet. App. at 532; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran reported in-service noise exposure through loud radio noise while wearing headphones and using cryptography machines that made constant, loud clunking noises and high-pitched rings. See August 2015 Notice of Disagreement (NOD). The Veteran advised that such a long amount of time in this environment would have contributed to his hearing problems, including tinnitus. Id. The Veteran stated that his ears would ring after this in-service noise exposure, but would settle down by the time he returned to his barracks. See April 2017 Appeal to the Board of Veterans’ Appeals (VA Form 9). The Veteran also stated that the ringing in his ears has worsened with age. Id. The Veteran reported that he did not experience noise exposure after his active service either occupationally or recreationally. See August 2015 NOD. The Veteran submitted a July 2014 article from The American Legion Magazine discussing hearing loss and tinnitus and their relation to current servicemembers and veterans. As will be discussed below, the preponderance of the evidence weighs against the Veteran’s claim for service connection for tinnitus. The Veteran’s service treatment records do not reflect complaints, treatment, or findings of ringing in the ears or tinnitus. The Veteran’s VA treatment records demonstrate that he did not report tinnitus. An April 2011 Audiology Consultation indicates that the Veteran denied tinnitus, ear pain and drainage, and previous hearing aid use. A July 2014 Audiology Consultation shows that the Veteran denies tinnitus, ear pain and drainage, and ear surgery. The Veteran’s claims folder does not contain private treatment records indicating otherwise. The Veteran underwent a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) in October 2014. The examination report demonstrates that the Veteran does not report recurrent tinnitus. The Veteran also underwent a Hearing Loss and Tinnitus DBQ in February 2017. The examination report notes that the Veteran reported recurrent tinnitus, but no definitive date of onset of tinnitus was provided by the Veteran. The examination report states that the Veteran denied tinnitus during previous audiological examinations and his service treatment records do not contain reports of tinnitus during his active service. The examination report notes that the Veteran sustained in-service noise exposure due to high-pitch ringing in his headphones and heavy clunking noises from cryptography machines and that he was relieved to end his work shift around these machines. However, the examination report indicates that the Veteran did not report experiencing tinnitus after his work shifts and that while noise experienced during these work shifts could be a contributing factor to tinnitus, it would be mere speculation to link this in-service noise exposure to his report of recurrent tinnitus. The Veteran underwent a Hearing Loss and Tinnitus DBQ in June 2018. The examination report demonstrates that the Veteran does not report recurrent tinnitus. The Board does not find that the Veteran’s statements concerning whether his tinnitus manifested during his active service credible. The Veteran’s May 1963 examination for release from active duty does not show a history of ear problems or complaints of ringing in the ears or tinnitus. The Veteran’s service treatment records do not indicate complaints, treatment, or findings of ringing in his ears or tinnitus. This contemporaneous evidence outweighs and contradicts the Veteran’s later statements in support of this claim that he experienced ringing in his ears during his active service and that while he did not think much about the ringing in his ears after his active service, it has worsened over time. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias[.]”); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran). Further, the Board has considered the Veteran’s opinion that his tinnitus is related to service, but finds that it lacks probative value and is outweighed by the October 2014 and June 2018 VA examination reports that show the Veteran does not report recurrent tinnitus, the April 2011 and July 2014 VA Audiological Consultations that demonstrate that the Veteran denies tinnitus, and the February 2017 VA medical opinion that is unable to link the Veteran’s reports of tinnitus to his active service. In this regard, the Board may not categorically reject lay testimony on medical issues or categorically find that medical evidence is required to support the claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Rather, the Board must determine on a case-by-case basis whether lay testimony is competent with respect to the issue in question, or whether medical evidence is required. Id.; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson, 581 F.3d at 1316; Jandreau, 492 F. 3d at 1376-77; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, while the Veteran is competent to state that his tinnitus has been present since service, the Board does not find this history to be credible, as explained above. Thus, to the extent that the Veteran’s opinion is based on that premise, it lacks probative value. Whether in-service noise exposure may have caused the development of tinnitus years later cannot be made based on lay observation alone given the long amount of time that elapsed, and because there is no apparent cause-and-effect relationship that can be readily observed through the senses and without the aid of medical knowledge. Accordingly, because the Veteran is a lay person in the field of medicine, his unsupported opinion is not competent evidence on this medically complex issue. See id. Therefore, the Veteran’s opinion lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). The February 2017 VA medical opinion carries much probative weight in the Board’s determination, as it represents the informed conclusion of an objective medical professional, is based on a review of the Veteran’s medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The medical opinion indicates that the Veteran did not advise of experiencing tinnitus during his active service and he did not provide a date of onset for his tinnitus. Further, the examination report includes notations to the Veteran’s previous audiological examinations and his service treatment records. The Veteran’s claims folder does not contain a positive medical nexus opinion linking his reports of tinnitus to his active service. Additionally, because the Veteran’s tinnitus was not noted in service, service connection may not be established based on chronicity during service or a continuity of symptomatology after service separation. See 38 C.F.R. § 3.303(b). The evidence does not show that the Veteran’s tinnitus manifested to a compensable degree within one year of service. Thus, service connection for tinnitus cannot be granted on a presumptive basis. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). In sum, the preponderance of the evidence weighs against the Veteran’s claim for service connection for tinnitus. Consequently, the benefit-of-the-doubt rule does not apply and the Veteran’s claim for service connection for tinnitus is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel