Citation Nr: A21016897 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 200214-69742 DATE: October 19, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against a finding that tinnitus had its onset in service, was manifested within one year of service discharge, or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1996 to June 1997. The Veteran's military occupational specialty was medical laboratory apprentice. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In June 2021, the Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as tinnitus, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for tinnitus. The reasons follow. As to evidence of a current disability, a December 2019 VA examination report shows that the Veteran was diagnosed with tinnitus. Other medical records show a diagnosis of tinnitus. Thus, there is evidence of a current disability, and the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records do not show that the Veteran sustained a disease or injury to her ears during service. However, the Board concedes she had in-service noise exposure, which is not the same as acoustic trauma. Thus, the facts establish that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Veteran was afforded a VA audiology examination in May 2018. The audiologist opined that the Veteran's tinnitus is considered less likely as not caused by military noise exposure. The audiologist stated that the Veteran denied tinnitus as defined in the VA Handbook of Progressive Tinnitus Management and TMS Learning Modules. Instead, the examiner noted that the Veteran reported a transient ear noise that occurs in the general population with no auditory pathology or damage, which the examiner wrote is not consistent with noise-induced tinnitus. The examiner reviewed the Veteran's service treatment records or Department of Defense records and found that neither showed significant permanent shift in hearing thresholds greater than test variability from 1995 to post-activation in 1999. The examiner found there was evidence of no permanent auditory damage on active duty. Additionally, the examiner wrote there were no standard threshold shifts beyond test variability and aging from entrance to today. The examiner added that there was no record of complaints or treatment for tinnitus at separation. The examiner wrote that at the examination, the Veteran reported the onset of tinnitus to be 10 years ago without any triggers, which the examiner noted is 10 years post-separation, and late onset noise-induced tinnitus is not supported by noise-induced tinnitus. The examiner pointed out that noise-induced tinnitus is a symptom of noise-induced auditory pathology or damage. She wrote there is evidence through distortion product otoacoustic emissions (DPOAE), pure-tone, tympanometry/reflexes, and speech testing of no current auditory pathology/damage in either ear. The examiner noted that although excessive noise exposure on active duty is conceded, and the relationship between noise exposure, auditory damage, and tinnitus is well documented, auditory damage and tinnitus are not conceded based on hazardous noise alone. She explained there must be a nexus of auditory damage on active duty to relate current report of tinnitus/transient ear noise to noise on active duty and not one of the many other etiologies of tinnitus. Thus, the examiner found that the objective evidence is against a nexus of auditory damage in service. In November 2019, the Veteran submitted a private nexus letter from Wade Kirkland, M.A. Mr. Kirkland wrote that it was as least as likely as not that the Veteran's military noise exposure caused her tinnitus. He stated that it was well-known that intense sound can result in tinnitus and with the Veteran's beginning while in service, it seems reasonable to assume that is the cause. The Veteran had another VA examination in December 2019. The examiner found that the Veteran's bilateral hearing was normal (it did not meet the criteria for a hearing loss disability for VA purposes, see 38 C.F.R. § 3.385) and concluded that tinnitus was less likely than not a symptom associated with the Veteran's hearing loss because the Veteran's military occupational specialty showed a low probability of hearing loss and the hearing tests in service did not indicate a significant change in hearing while in service. The Veteran has provided inconsistent facts as to the onset of tinnitus. For example, at the May 2018 VA examination, the Veteran reported the onset of tinnitus was 10 years ago without triggers. She stated she heard it following the rifle range. She further stated that she once had tinnitus and vertigo at the same time due to dehydration, although this complaint was unclear as to when that happened. See May 2018 VA examination report. Within the October 2019 private opinion, Mr. Kirkland documented that the Veteran reported her tinnitus started after exposure to aircraft noise on the flight line, artillery with M-16, and exercise in high noise environments. She also told Mr. Kirkland that she first noticed tinnitus in 1996 and that it was in both ears, described as intermittent and sounding like "humming." Then during the December 2019 VA examination, the Veteran reported the onset of her tinnitus while on the flight line. During the June 2021 Board hearing, the Veteran testified that she first noticed the tinnitus after basic training. The Veteran's inconsistent assertions of the onset of her tinnitus vary from having an onset of tinnitus at the beginning of service, during service, and after service. Thus, the Boards finds the Veteran's statements as to the onset of tinnitus not credible. As Mr. Kirkland's opinion that the Veteran's tinnitus had its onset in service relies solely on the history provided by the Veteran, which the Board finds is not credible; therefore, this medical opinion is based on an inaccurate factual history, and such opinion, therefore, has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Board affords great probative weight to the opinions of the May 2018 and December 2019 audiological examiners, who found that the Veteran's tinnitus was less likely than not related to service. Both examiners provided rationales that were based upon a review of the record and medical principles. The December 2019 VA examiner noted the Veteran's military occupational specialty had a low probably of noise exposure, which specialty was a lab technician. The May 2018 VA examiner in particular provided a very detailed opinion, which opinion was based upon the facts, medical principles, and medical literature. The examiner had clearly reviewed the Veteran's service treatment records, including the hearing tests performed during that time period. Thus, the Board finds the May 2018 medical opinion particularly probative due to the detailed explanation provided for how the examiner concluded that tinnitus was less likely than not incurred during service. The Board acknowledges the Veteran's assertions that her tinnitus is related to noise exposure that occurred during her period of active service. However, such assertion is not competent, as it requires medical expertise. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Thus, there is no competent and probative evidence upon which to weigh against the negative VA opinions. Hence, while the evidence shows that the Veteran has tinnitus, the preponderance of the evidence is against a finding that tinnitus had its onset in service or is otherwise related to service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for tinnitus is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.