Citation Nr: 19123728 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 13-08 413 DATE: March 29, 2019 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for skin cancer, to include as due to exposure to herbicide agents is remanded. FINDING OF FACT The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for tinnitus. The Veteran asserts that he has tinnitus due to exposure to gunfire noise in service. Such exposure has been conceded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and evidence shows that he was exposed to loud noise in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease, particularly any acoustic trauma VA records show the Veteran was not diagnosed as having tinnitus and did not seek any clinical treatment for the condition until December 2009, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of tinnitus, e.g. ringing in the ears, since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of tinnitus. The issue is medically complex, as it requires knowledge of the anatomy of the ear, as well as the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the December 2009, July 2012 and May 2015 and VA examiners’ opinions establish that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including exposure to loud noise. The December 2009 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to exposure to noise in service, while the July 2012 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to service, noting that the Veteran’s December 2009 thresholds were near normal, thus making clear that the Veteran did not incur any acoustic damage in service. The May 2015 examiner clarified that the Veteran’s tinnitus was not delayed-onset tinnitus. The examiners’ combined opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA examiners’ opinions. The Veteran believes that his tinnitus is related to an in-service injury, event, or disease. He is certainly competent to relate his lay observations of ringing in the ears; however, the Board concludes that the VA opinions outweigh any of his lay assertions because they demonstrate an absence of acoustic trauma in service. Consequently, the Board gives more probative weight to the VA examiners’ opinions. REASONS FOR REMAND 1. Entitlement to service connection for skin cancer, to include as due to exposure to herbicide agents is remanded. The Veteran claims that he has skin cancer either from exposure to tactical herbicide agents or to the tropical sun during his service in Vietnam. Exposure to herbicide agents has been conceded. In May 2015, VA obtained an opinion to address whether any skin cancer was attributable to service. The VA examiner explained that the Veteran’s skin cancers were not among those cancers presumptively related to exposure to herbicides. He also concluded that the Veteran’s skin cancers were most likely related to sun exposure, rather than exposure to any herbicides. However, the examiner could not offer an opinion without resorting to speculation on whether the Veteran’s skin cancers were caused by sun exposure during active military service. The examiner offered no rationale for why this would be speculative. Accordingly, the Board finds the opinion insufficient, and it is returned. 38 C.F.R. § 4.2. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to address the etiology of his skin cancers. Arrange for the Veteran’s electronic claims file, including a copy of this remand, to be reviewed by the VA examiner. Following review of the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s claimed skin cancers are etiologically related to his military service, to include presumed exposure to tactical herbicide agents, or exposure to the tropical sun during his service in Vietnam. The examiner is reminded that the term “as likely as not” does not mean within the realm of medical possibility, but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should provide rationale for any opinion. The examiner is asked to explain the reasons behind any opinion expressed and conclusion reached. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak