Citation Nr: 20005145 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-17 952 DATE: January 23, 2020 ORDER Service connection for tinnitus is denied. FINDING OF FACT Tinnitus is not related to service, did not manifest within one year of separation from service, and symptoms of tinnitus have not been continuous since service separation. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This appeal is before the Board of Veterans’ Appeals (Board) from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the Veteran has also appealed the issues of entitlement to service connection for back pain, posttraumatic stress disorder (PTSD), diabetes, ulcers, an eye disability, severe fatigue, as well as whether new and material evidence has been submitted to reopen claims of service connection for chronic obstructive pulmonary disease (COPD), gastroesophageal reflux disease (GERD), arthritis, and actinic keratosis. With respect to these issues, in his February 2018 substantive appeal he requested a hearing before the Board that has not yet been scheduled. With respect to his claim for service connection for tinnitus, in his June 2019 substantive appeal the Veteran declined a hearing before the Board. In October 2019, the representative filed a brief and supplemental evidence regarding the issue of tinnitus only. The representative neither indicated that the Veteran wished to present evidence with respect to tinnitus at a hearing before the Board, nor did she indicate that the Veteran no longer wished to attend a hearing to address the other issues on appeal. As such, the Board will only address the issue of service connection for tinnitus in this decision, and the remaining issues will be decided after the Board hearing has occurred. Entitlement to service connection for tinnitus The Veteran claims service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including organic diseases of the nervous system such as tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The incurrence or aggravation may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of, or treatment for, tinnitus, and in his May 1970 report of medical history the Veteran explicitly denied having ever experienced ear trouble. VA treatment records reflect that at September 2007 and July 2008 physical examinations the Veteran explicitly denied experiencing tinnitus. At a February 2014 primary care appointment, he again denied tinnitus. The Veteran underwent a VA examination for a prior claim of service connection for hearing loss in December 2015. He reported subjective transient tinnitus but did not report a date or circumstance of onset from his period of service. The examiner opined that tinnitus was less likely than not related to military noise exposure. This opinion was based on the rationale that the Veteran’s in-service noise exposure as an infantryman was not accompanied by measurable hearing loss. In the accompanying opinion regarding hearing loss, the examiner explained that there was no significant threshold shift in hearing as measured from his February 1968 pre-induction examination to his April 1970 separation examination. The Board notes that in a February 2016 rating decision, the Veteran was denied service connection for bilateral hearing loss. This issue was not appealed by the Veteran. As such, the issue of service connection for tinnitus is not intertwined with any active claim or appeal. VA treatment records reflect that at an October 2016 Agent Orange registry examination, the Veteran reported continuous tinnitus. In a statement attached to his March 2018 claim, the Veteran’s representative stated that he was constantly exposed to hazardous noise conditions as a machine gunner in Vietnam from 1968 to 1969. The Veteran reported that his ears began ringing while he was in Vietnam and has persisted to the present. The Veteran underwent a VA examination in April 2018. He reported constant bilateral tinnitus since the late 1960s. He reported extensive combat noise without hearing protection. The examiner opined that tinnitus was less likely than not related to service. This opinion was based on the rationale that there was no mention of tinnitus when in service, nor was there hearing loss in service. In a rationale explaining an accompanying opinion regarding hearing loss, the examiner noted that the Veteran’s hearing was normal at induction and separation with no significant threshold shift. In a March 2019 statement, the Veteran reported that he served in the infantry from November 1968 to October 1969. He reported that his regular duties involved exposure to gunfire noise, explosions, and aircraft engines. He reported that began to experience ringing in his ears following these events, and that he has had this ever since Vietnam. He reported that when it began, he was unaware that it was a disability, and that he had never been asked by a physician if he had ringing in his ears. In an October 2019 brief, the Veteran’s representative noted his combat status and his credible reports that he was exposed to loud noise in service. The representative cited to authorities showing that exposure to sounds above 85 decibels can cause ear damage resulting in tinnitus, and his weapon in service produced sound between 145 and 190 decibels. The representative further stated that the statement of the case erred in stating that service treatment records do not show a complaint or diagnosis of tinnitus, arguing that none of the records indicate that he was ever asked about tinnitus in service. It is the Veteran’s contention that while in service he was unaware that the ringing of his ears was a disability for which he should speak to a doctor. The Board finds that the evidence weighs against a finding that the Veteran’s tinnitus is related to service, manifested within one year of separation, or has presented as continuous symptoms since service separation. There is no doubt that the Veteran was exposed to significant noise while in service. The question before the Board is whether such noise caused tinnitus. His representative has supplied ample information showing that such noise could have caused tinnitus, but there is no medical evidence that exposure to noise actually caused the Veteran’s tinnitus. While his representative is correct that service treatment records do not reflect whether he was ever asked about tinnitus, he never sought treatment for such symptoms and in his separation report of medical history he denied having ever experienced ear trouble. Likewise, he explicitly denied tinnitus in September 2007, July 2008, and February 2014. At his December 2015 VA examination for hearing loss, he reported transient tinnitus but was unable to state if it started in service. It was not until his March 2018 claim that he reported that he has experienced constant tinnitus since serving in Vietnam. In contrast, the December 2015 and April 2018 VA examiners gave opinions explaining that the Veteran’s in service audiometric testing show that the noise he was exposed to in service did not cause lasting damage, and as such, it is unlikely that his current tinnitus is related to it. There is no medical evidence in the record to contradict these opinions. These opinions, based on contemporaneous records, are thus more probative than the Veteran’s contradictory statements. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s tinnitus is related to service, manifested within one year of separation, or was continuous since service separation. Service connection is therefore denied. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.