Citation Nr: 18111322 Decision Date: 06/15/18 Archive Date: 06/15/18 DOCKET NO. 15-01 063 DATE: ORDER Service connection for tinnitus is denied. FINDING OF FACT Tinnitus did not have its onset during active service or within one year of service discharge and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1999 until July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Portland VA Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for tinnitus. 1. Service Connection – Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2016). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including organic diseases of the nervous system, such as tinnitus, service connection may be granted on a presumptive basis if the disease manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112. Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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, a showing of continuity of symptoms after service is generally required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 1.A. Service Connection – Tinnitus The Veteran claims entitlement to service connection for tinnitus. The Veteran has a current diagnosis of tinnitus. The Veteran served as a mechanical equipment repairman on an aircraft carrier during active military service in the U.S. Navy. As such, the Board finds that the Veteran’s report of noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C. § 1154(a). Service treatment records do not document any complaints, treatment, or diagnosis of tinnitus. The Veteran specifically indicated “No” on a service treatment record when questioned about whether he had experienced “ringing in the ear (tinnitus).” The Board acknowledges that the exact date on the treatment record was illegible. While the Veteran reports in a lay statement dated February 21, 2012 that he experienced tinnitus during service, there is no documentation of tinnitus on audiology exams performed during the Veteran’s service. Upon VA audiology examination on March 1, 2012, the Veteran reported intermittent tinnitus since service. The VA examiner ultimately concluded that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran’s tinnitus was reported to be brief (5-20 seconds in duration), that the exam indicated no significant shift in hearing threshold when compared with audiology exams performed during the Veteran’s active service, that the Veteran had preexisting hearing loss in his right ear prior to entering active service, and that there had been no significant shift in hearing threshold at the time of the Veteran’s discharge from active service. Based on the above, the Board finds that the most competent and credible evidence is against a finding that tinnitus had its onset in service or is otherwise due to service. In this regard, the Board finds the March 2012 VA opinion to be highly persuasive to the issue at hand. The Board notes that the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467. 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 V et. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the examiner’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the March 2012 opinion was provided by an audiologist who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is shown to have been based on a review of the Veteran’s claims file, and is accompanied by a sufficient explanation. The VA examiner also considered and acknowledged the Veteran’s lay statements of record in reaching his conclusions. The examiner noted that the Veteran’s tinnitus was reported to be brief (5-20 seconds in duration), that the exam indicated no significant shift in hearing threshold when compared with audiology exams performed during the Veteran’s active service, that the Veteran had preexisting hearing loss in his right ear prior to entering active service, and that there had been no significant shift in hearing threshold at the time of the Veteran’s discharge from active service. Notably, the only evidence that the Veteran’s tinnitus is related to his active service is the Veteran’s own lay assertions. Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is thus competent to report that he has experienced tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran’s statements further assert a nexus between his tinnitus and his active service, to include in-service noise exposure, such statements are afforded little probative value, as the Veteran is not shown to possess the expert audiological expertise necessary to render a nexus opinion regarding tinnitus with onset after service discharge. See Jandreau, 492 F.3d at 1376-77. Regardless, the Veteran’s statements that his tinnitus is related to in-service noise exposure are outweighed by the March 2012 medical opinion, wherein the VA examiner opines that the Veteran’s tinnitus is not related to service. The Board has considered the Veteran’s lay statements of record regarding his observable symptoms, including tinnitus, which are probative evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his tinnitus first manifested during active service, within one year of service discharge, or continuously since active service, such statements are less probative given the inconsistency of the Veteran’s statements. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). For example, in one of the Veteran’s service treatment records, the Veteran circled “No” for a question asking if he had “ringing in the ears (tinnitus).” The Board accords this statement high probative value, as the Veteran completed this form contemporaneously with his service. As noted above, the Veteran’s service treatment records are absent of any complaints, or diagnosis of tinnitus. Such evidence weighs against a finding that the Veteran’s tinnitus first had onset during active service and continued to the present. The change in the onset of the Veteran’s tinnitus has damaged his credibility. It is important to point out that the Board does not find that the Veteran’s lay statements of in-service onset lack credibility merely because they are unaccompanied by contemporaneous medical evidence, specifically the lack of notation in the Veteran’s service treatment records. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”) Rather, the current lay statements are found to lack credibility because they are inconsistent and directly contradict the other lay and medical evidence of record, which show that the Veteran did not report, and was not treated for tinnitus while in-service but sought treatment for several other symptoms during his active military service. Finally, there is no presumptive credible evidence of record that the Veteran’s tinnitus manifested to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the first complaint of tinnitus was the Veteran’s February 2012 claim, many years after discharge from service. In sum, the evidence of record is not sufficient to support the Veteran’s claim of service connection for tinnitus. The preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs