Citation Nr: 21001326 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-61 104 DATE: January 7, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for non-Hodgkin's lymphoma as a result of exposure to non-ionizing radiation is remanded. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran’s tinnitus began during active service or is otherwise related to an in-service disease, injury or event. CONCLUSIONS OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 31, 1987 to November 21, 1991 and Navy Reserve from November 22, 1991 to August 31, 1995. The records reflect the Veteran served during the Gulf War Era and Peacetime. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a videoconference hearing held at the RO before the undersigned. A transcript of the proceedings has been associated with the record. Service Connection Entitlement to service connection for tinnitus The Veteran contends that he suffers from tinnitus and that it started between 1989 and 1990 from gunfire and Harrier jets on the ship he served on. The Veteran states that while he has participated in two different audio exams, both examiners reported the wrong years for onset of his tinnitus: in October 2014 the examiner stated onset was in 1996 and in October 2016 the examiner stated onset was in 1998. See Form 9 December 2016. At the Hearing in February 2020, the Veteran testified that when he attended an audio examination at the VA in Los Angeles and the technician might have transposed the numbers because the reports said “1998 instead of 1989”. Otherwise, the Veteran does not offer any additional explanation as to why the date of onset of his tinnitus is not consistently reported. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As to evidence of an in-service incurrence or aggravation of a disease or injury, the Veteran’s statements about or complaints of noise exposure that he experienced while in service are not consistent. The Veteran contends that the dates of onset reported in both the 2014 and 2016 audiology examinations were not reported accurately. The Veteran’s Military Personnel Record contains a Navy Occupation Summary document reflecting that in June 1990, the Veteran changed locations. His former duty was “Forklift” and the duty shifted from Forklift to Signal Bridge recorder/messenger. The numerical location code also changed. From the time of this location shift in June 1990 until June 1991 the Veteran remained at this same location code and fulfilled various positions that appear to be associated with the Signalman duties the Veteran describes on the ship, culminating in “Signalman Supervisor” in June 1991. These records indicate that the Veteran’s duty location on the ship (identified by the Veteran as the source for noise exposure) likely commenced from approximately June 1990 and continued through at least June 1991, with the Veteran separating from active service in November 1991. The dates the Veteran himself has identified as the ‘correct” dates of onset for his noise exposure and onset of tinnitus are not consistent with the duty descriptions and locations in the Veteran’s records. Additionally, the Veteran’s enlistment and separation examinations showed that his hearing was within normal limits and did not contain complaints of ringing in his ears. Notably, the Veteran’s service medical records do not show any complaints, treatment, or diagnosis of tinnitus during his active service or at any time shortly thereafter: including but not limited to records of physical and/or audio examinations dated 1987, 1988, 1989, 1991, and 1993. A VA examiner provided an audiological examination in October 2016. The examiner determined 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 separation examination in his STR’s showed that his hearing was within normal limits with no evidence of hearing loss for VA purposes. Moreover, the examiner opined that the Veteran first reported tinnitus was in 1998 almost seven (7) years after leaving service. The audio examiner in 2014 likewise denied any nexus to service. Therefore, the Board finds that the Veteran has not satisfied the second prong of service connection: evidence of an in-service incurrence or aggravation of a disease or injury. 38 U.S.C. §§ 1110, 1131; Boyer, 210 F.3d at 1353. To the extent that the Veteran has contended that the VA examiner report erroneously recorded the date of onset of his tinnitus, the Board finds this contention is not credible in light of the subsequent examinations in 1991 and 1993 that do not report any tinnitus. The Board concludes that the most probative medical evidence weighs against a finding of a nexus between the Veteran’s claimed tinnitus and his noise exposure during active duty service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71(1993).The Board finds the medical evidence of record more probative than the Veteran’s assertions that tinnitus began during service. As noted above, a thorough review of the Veteran’s medical records does not show any treatment for, or diagnosis of, tinnitus until years following the Veteran’s separation from active duty service. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that a causal relationship between the Veteran’s tinnitus and an in-service event. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for non-Hodgkin's lymphoma as a result of exposure to non-ionizing radiation is remanded. The Veteran contends that his non-Hodgkin’s lymphoma was caused by radiation exposure in service. He worked as a Signalman and testified that his duty position required that he work at the top deck of the ship surrounded by four or five huge antennae that were spinning and giving off radar emissions. The equipment included transmitters and communication systems. The Veteran testified that he believes he was exposed to radiation hazards when the antennae were rotating and that while underway on the ship, he was frequently located very close to the rotating antennae. See Veteran’s Testimony February 2020. In December 2016, the Veteran submitted a statement after his claim was denied, indicating his belief that the Navy is aware radiofrequency radiation (RFR) can be potentially hazardous. He states that as a Signalman third class he was exposed to such radars onboard his ship. This evidence was submitted to the examiner and the Veteran believes the information was overlooked during the review process. Radiation claims may involve ionizing or non-ionizing radiation. Records obtained from the Department of the Navy in March 2015 indicate that this Veteran’s records do not contain any reports of occupational exposure to ionizing radiation. The Veteran claims that his illness resulted from his work near the antennae on the ship, including transmitters and communication systems, while on active duty in the Navy. The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69 (1997). The Board notes that non-ionizing exposure from radio or radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 and 3.311, which instead address exposure to ionizing radiation. It is VA’ s duty to assess the current state of medical knowledge on the subject, including the articles submitted by the Veteran. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (examiner may have duty to conduct research in the medical literature before rendering an inconclusive opinion). The Veteran has submitted articles entitled “Acquisition safety radio frequency radiation RFR hazards” published by the Naval Safety Center; and “Long-Term Exposure to Microwave Radiation Provokes Cancer Growth: Evidence from Radars and Mobile Communication Systems.” With regard to the Veteran’s Service Treatment Records (STR’s), in August 1988, the Veteran was treated for a fever, sore throat, and swelling to the tonsil. The throat was red and the cervical lymph node was swollen on the right side and tender upon palpitation. In June 1988 the Veteran experienced unexplained nose bleeding. In January 1989 the Veteran experienced ear pain. In November 1991 there are results from some blood work: RBC, WBC, HEMO, Hematocrit. In July 1998, the Veteran was diagnosed with non-Hodgkins lymphoma large cell type 1A at a private provider. His presenting symptoms were a markedly enlarged tonsil on the left side and fluid in the left ear. The Veteran was afforded a VA examination to determine the nature and etiology of his non-Hodgkins lymphoma (NHL) in remission in August 2016. The examiner found that although malignancies such as NHL can be caused by exposure to carcinogens and radiation, there is no clear etiology. The examiner opined that therefore, nexus cannot be made. The Veteran received private treatment for his NHL from Dr. GS, UCLA Health. The Veteran associated a Questionnaire with the file that was signed by Dr. GS in November 2015. Dr. GS opines that he has reviewed the Veteran’s STR’s and that it is more likely than not that the Veteran’s NHL is directly related to the Veteran’s service. Accordingly, the Veteran’s file contains two medical opinions that reach different conclusions. A VA medical examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The two medical examination opinions in the Veteran’s claims file reach contradictory conclusions, and there is evidence associated with the file that was not thoroughly discussed by the examiners. The Board finds that another VA medical examination and opinion is required so the Board can evaluate the Veteran’s claim. The Board notes it is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, a remand is necessary to afford the Veteran an additional VA examination to assist in evaluating the non-Hodgkins lymphoma claim. On remand, efforts should be made to clarify the Veteran’s Navy Reserve service to identify any periods of active duty, active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA).   The matters are REMANDED for the following action: 1. Prior to obtaining any opinion, the Veteran’s assistance should be enlisted to assure that any outstanding records of pertinent medical treatment from VA or private health care providers are identified. Any such records should be obtained and added to the claims file. 2. The RO should verify any periods of active duty, ACDUTRA, and INACDUTRA. Resources include the National Personnel Records Center, the Records Management Center, the Veteran’s unit(s), or any other appropriate entity. To the extent possible, the RO should then prepare a summary of the dates of active duty, ACDUTRA, and INACDUTRA. The summary should be associated with the claims file. 3. After the information referenced above at (1) and (2) is associated with the claims file, afford the Veteran a VA examination with an appropriate specialist to determine the nature and etiology of his non-Hodgkins lymphoma. This remand and the entire claims file should be made available, reviewed by the examiner, and the examiner should note this was accomplished. Any indicated tests and studies should be undertaken and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In providing an opinion, the examiner should address the Veteran’s reports of in-service exposure to non-ionizing radiation that may or may not have included microwaves from antennae and/or radiofrequency from radar. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s non-Hodgkins lymphoma, in remission, was caused by, aggravated by, manifested during, or was otherwise related to a period of active duty service and/or ACDUTRA, to include the Veteran’s assertions. The examiner must specifically address medical literature submitted by the Veteran to support his claim that exposure to microwave radiation and radar equipment caused his non-Hodgkins lymphoma. Comment on the medical reports of symptom information in the Veteran’s service treatment records. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.