Citation Nr: 20007818 Decision Date: 01/31/20 Archive Date: 01/29/20 DOCKET NO. 09-25 243 DATE: January 31, 2020 ORDER Service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus is not related to service and did not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to September 1977 with periods of service in the Reserves from September 1977 to June 2001. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2017, the Veteran testified during a Board hearing in St. Petersburg, Florida, before Veterans Law Judge (VLJ) Wight. Testimony at this hearing related to his claims of service connection for hypertension, headaches, a cervical spine disability, and tinnitus. A transcript is included in the claims file. In October 2018, the Veteran testified during a Board hearing before VLJ Kramer via videoconference. Testimony at this hearing related to his claims of service connection for tinnitus, an increased rating for a lumbar spine disability, and a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). A transcript is included in the claims file. Each of the abovementioned issues is to be addressed in separate decisions by the VLJ who heard relevant testimony, with the exception of entitlement to service connection for tinnitus, the only issue addressed at both hearings. The Veteran was scheduled to testify at a third October 2019 hearing in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011), which held that, under 38 C.F.R. § 20.707, a veteran has the right to a hearing before all three VLJs involved in the panel decision. In an October 2019 statement, however, his representative declined another hearing. The issue may therefore be addressed by the panel. 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 the purposes of service connection, the abovementioned disease or injury must be incurred or aggravated in the active military, naval or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term “active military, naval or air service” is further defined as (1) active duty or a period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). 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 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 that the Veteran had any symptoms of or treatment for tinnitus. VA treatment records reflect that in October 2007 the Veteran reported hearing difficulty but denied tinnitus. He was referred to an audiologist. In November 2007 he explicitly denied any history of tinnitus to his audiologist and was considered a candidate for right ear hearing amplification. In August 2016, he was concerned with tinnitus and possible hearing loss and returned to an audiological consultation. Thresholds were within normal limits through 4000 hertz. VA obtained a medical opinion from a VA examiner in November 2016 based on a review of the Veteran’s file. The examiner opined that tinnitus was less likely than not related to service. This opinion was based on the rationale that the Veteran’s hearing was normal on discharge with no permanent significant threshold shifts from induction to separation, and that there was therefore no indication of acoustic trauma while in service. The examiner explained that in order for the Veteran’s tinnitus to be service-connected, one would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. Furthermore, in most cases tinnitus is accompanied by measurable hearing loss. At his January 2017 Board hearing, the Veteran reported that in service and in the Reserves as a Reserve drill sergeant he was exposed to noise from the ranges involving M-16 and M60 gunfire, mine explosions, and other weapons. He reported that he first noticed ringing in his ears as early as 1980 or 1985, and it had been off and on since then. It was currently continuous. In a February 2017 opinion, the Veteran’s private audioprosthologist opined that his constant tinnitus was more likely than not due to his service. This opinion was based on the rationale that his current audiogram was consistent with firearm exposure and long periods of exposure to loud sounds in military service. At his October 2018 Board hearing, the Veteran reported that he first noticed ringing in his ears about a year or so after service. He stated that he did not seek treatment until maybe a couple of years after he got out of service. He described the weapon noise that he was exposed to in service. He stated that he used hearing protection that muffled but did not eliminate the noise. His representative stated that the person who signed the February 2017 opinion was an audioprosthologist who services hearing aids and not a licensed audiologist. The Board finds that the evidence weighs against a finding that tinnitus is related to service or manifested within one year of separation from service. The November 2016 VA medical opinion gives a detailed rationale, explaining that tinnitus is unlikely to manifest years after exposure to noise without any indication of increased hearing loss at the time of such exposure. The examiner explained that there were no significant shifts in the Veteran’s hearing thresholds from induction to separation. While the February 2017 private opinion indicates that the Veteran’s thresholds are consistent with exposure to military noise, the opinion was issued by an audioprosthologist who did not review any service treatment records, and such records were the basis of the VA examiner’s rejection of such a theory. Finally, the Board does not find credibility in the Veteran’s reports that he first noticed tinnitus about a year after service, as this evidence is contradicted by VA treatment records in 2007. At that time, the Veteran reported hearing loss but explicitly denied having symptoms of tinnitus. Continued on Next Page As such, tinnitus more likely than not first manifested at some point after 2007, years after the conclusion of the Veteran’s Reserve service in 2001. For these reasons, the Board finds that the evidence weighs against a finding that tinnitus is related to service or manifested within one year of separation from service. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals K.A. KENNERLY 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.