Citation Nr: 21002977 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-50 922 DATE: January 19, 2021 ORDER Entitlement to service connection for right-side tinnitus, to include as secondary to service-connected right-ear hearing loss, is denied. FINDING OF FACT The objective medical evidence shows right-side tinnitus is not caused by an event, injury, or illness during active service, it is not proximately due to, the result of or made worse beyond its natural progression by service-connected right-ear hearing loss, nor did it manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right-side tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1965 to July 1967. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Moreover, service connection of a nonservice–connected disease or injury will be established if an increase in severity of the nonservice–connected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice–connected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Entitlement to service connection for right-side tinnitus, to include as secondary to service-connected right-ear hearing loss. The service treatment records (STRs) show no reports, complaints, treatment, or diagnoses of tinnitus during active service. Specifically, the May 1967 separation examination shows no notes or comments regarding tinnitus. The post-service record shows September 1983 audiometric testing for hearing loss, but no mention is made by the Veteran or his treatment provider of tinnitus. A February 1984 VA examination contains audiometric testing results, but shows no findings pertaining to tinnitus. In the September 2017 VA examination for hearing loss and tinnitus, the Veteran reported tinnitus only in “the right ear” and its onset was in the mid-1980s. The VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure because he reported its onset was in 1980’s and he left active service in 1967. Because the September 2017 VA examiner did not render an opinion as to whether the Veteran’s tinnitus is proximately due to or aggravated beyond its natural progression by service-connected right-ear hearing loss, the Board remanded the claim in January 2020 for an addendum opinion for secondary service connection. After several opinions followed in March 2020, the Board again remanded the claim for adequate opinions, as the March 2020 VA examiner did not adequately address the issues of causation and aggravation by service-connected right-ear hearing loss. As directed by the Board, a June 2020 VA examiner produced two opinions. She first opined, “It is less likely as not that tinnitus is related to military noise based on valid rationale that onset of tinnitus was post-separation and research still does not support late onset noise-induced tinnitus. Although tinnitus can occur at any time relative to noise exposure, the etiology would not be due to auditory damage from noise because noise-induced tinnitus occurs within a short time of exposure to damaging noise.” She next opined, “It is less likely as not that veteran’s tinnitus is related to service connected hearing loss. Hearing loss and tinnitus are often related because they often share an etiology but hearing loss and tinnitus can exist with different etiologies. If etiology of hearing loss is military noise exposure and it is clear that the etiology of tinnitus is not military noise exposure then tinnitus and hearing loss do not share an etiology and are not related in this case.” However, the October 2020 Response submitted by the Veteran’s representative first asserts that the June 2020 medical opinions “fail to adhere to the VA standard regarding fully rationalized medical opinions, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither cited to specific medical treatise.” The Board does not agree. The June 2020 VA examiner stated in the rationale for her opinion on direct service connection that “research still does not support late onset noise-induced tinnitus” and in so stating, she implicitly refers to what appears in the previous March 2020 opinion in the record, that a 2005 study by the Institutes of Medicine (IOM) on possibility of delayed manifestation of noise damage is as yet the definitive source of research and data on this subject. The Board finds this rationale sufficient, as the subject matter and the study itself were earlier referenced in the record. Furthermore, the June 2020 VA examiner’s second opinion addressing secondary causation and/or aggravation is also sufficiently explained in its accompanying rationale. The Board first notes again the June 2020 VA examiner had noted in the rationale for her opinion for direct-service connection that tinnitus can occur at any time “relative to noise exposure,” that is to say, before, during or after it. In the second opinion, she reasons that, because research shows noise-induced tinnitus occurs within a short time of exposure to damaging noise, and, the Board notes, the Veteran has reported the post-service origin of his tinnitus in its manifestation 13 years after active service, noise-induced hearing loss and tinnitus therefore cannot have been “related” in any way. The Veteran’s representative further asserts that, if the June 2020 VA examiner contends tinnitus is “not for noise exposure in service,” she fails to “point to a definitive post-service origin.” The Board again does not agree. Although the June 2020 does not specifically identify a “definitive post-service origin,” she is able to eliminate other claimed or possible origins, based on what research has shown, that noise-induced tinnitus would have manifested a short time after noise-exposure damage. Lastly, “Organic diseases of the nervous system” are included among chronic diseases eligible for presumptive service connection under 38 C.F.R. § 3.309 (a). VA considers tinnitus to fall within this category. However, the record offers no evidence of the manifestation of tinnitus to a compensable degree within one year of separation from active service. As stated, the Veteran’s own reports state tinnitus had its onset in the mid-1980s, approximately 13 years after separation from active service. Additionally, because it was never identified in service or directly after, and putting aside the lack of medical evidence of treatment for tinnitus at that time, it would be otherwise impossible to establish continuity of symptomatology based on the identification of symptoms during, directly after or continuing for a longer period after active service. Consequently, the presumption of service connection for tinnitus as a chronic disease is not available to the Veteran. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection on any basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.