Citation Nr: 20009977 Decision Date: 02/07/20 Archive Date: 02/05/20 DOCKET NO. 19-15 956 DATE: February 7, 2020 ORDER Service connection for tinnitus is granted. Service connection for a left shoulder disability (claimed as stem collar bone break) is denied. FINDINGS OF FACT 1. The evidence as to whether the Veteran’s tinnitus had its onset in service is at least in equipoise. 2. The Veteran does not have a current left shoulder disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from April 1973 to April 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans’ Affairs (VA) Regional Office. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran seeks to establish service connection for tinnitus. He stated in a May 2019 VA Form 9 that he had experienced severe ringing in his ears since the time he was on active duty, and that the ringing had increased dramatically as he had gotten older. He asserted his belief that the ringing was caused by a multitude of in-service events, including riding in an amphibious military tractor, grenade training, riding in troop carrier trucks, simulated machine gun firing at close range, riding in military helicopters, and using rifles and pistols in training. In an October 1995 opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The United States Court of Appeals for Veterans Claims (Court) has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[] of the nervous system.’” Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board notes that there is no dispute that the Veteran has tinnitus, as demonstrated by an October 2018 VA examination. The Board also finds that the Veteran was exposed to hazardous noise during service, inasmuch as his DD Form 214 reflects that his military occupational specialty was a machine gunner. As to the nexus, or link, between the Veteran’s tinnitus and service, he is competent to provide statements with respect to the onset and presence of tinnitus, inasmuch as such symptoms are observable by a lay person. The Board finds his statements with respect to the onset of tinnitus in service credible. The Board acknowledges that the VA audiologist who evaluated the Veteran in October 2018 offered an unfavorable opinion with respect to nexus. While the audiologist noted a current diagnosis and conceded excessive noise exposure in service, she reasoned that because there was no complaint of tinnitus in the service treatment records (STRs) or at separation, there was no nexus of auditory damage on active duty to relate the Veteran’s current report of tinnitus to military service. She also opined that the Veteran’s noisy occupations after service were more likely to be the cause of his tinnitus than noise exposure in service. The Board finds the October 2018 VA examination inadequate for a number of reasons. First, the examiner did not account for the Veteran’s lay statements with respect to onset. Second, the Veteran’s April 1977 exit examination does not contain audiometric scores, which calls into question the VA examiner’s assumption that there was no auditory damage on active duty. Finally, she did not provide any rationale as to why noise exposure after service, rather than in service, would be more likely to cause tinnitus. The October 2018 VA examiner’s opinion is therefore of limited probative value. On balance, and taking into account the totality of the evidence including the Veteran’s in-service noise exposure and his statements and explanations with respect to onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for tinnitus is therefore granted. 2. Entitlement to service connection for a left shoulder disability The Veteran contends that he has left shoulder pain that began in service. He stated in his May 2019 VA form 9 that he injured his left shoulder during service in November 1973 during a football game and was diagnosed with a stem collar bone break. He asserted that when the weather changed throughout the year, a pain developed in the left shoulder at the site of the break. The question before 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 or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there first needs to be competent evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case, the Board finds that the Veteran is not shown to have a current disability of the left shoulder at any time during the pendency or proximate to the filing of his claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303 (a), (d). The available treatment records contain no diagnoses or descriptions of functional impairment related to the left shoulder during the pendency of the claim. Nor has the Veteran described any current impairment in earning capacity related thereto. In addition, the STRs, including the April 1977 exit examination, are negative for any chronic/ongoing problems with the left shoulder. During an October 2018 VA examination, the examiner noted that the Veteran had sustained a collar bone fracture in service in 1973, but stated that it had been treated acutely with complete resolution. While acknowledging that the Veteran had mild pain around the left collar bone during colder weather, the examiner also noted that the Veteran did not report flare-ups, did not report having any functional loss or functional impairment of the joint or of the extremity, that left shoulder pain did not impact his ability to work, and that he received no treatment. Objectively, there was no evidence of any current functional impairment associated with the left shoulder. The examiner noted that the shoulder and arm were normal. While the Veteran may believe that he suffers from a left shoulder disability that is related to service, the evidence does not support a finding that he has functional impairment of the left shoulder resulting in loss of earning capacity. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions to the contrary. The preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, supra. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate 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.