Citation Nr: 21021405 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-25 103 DATE: April 12, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1992 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim on appeal in September 2018 to obtain the private medical opinion referenced in the February 2015 deferred rating decision. The private medical opinion in question could not be located and is not of record. In April 2020, the Board remanded the Veteran’s appeal with instruction to notify the Veteran of the unavailability of the private medical opinion relating to his claim per 38 C.F.R. § 3.159(e) and give him an opportunity to respond. The RO complied with these instructions, as demonstrated by the April 2020 VA notice letter to the Veteran. The Board is therefore satisfied that the instructions in its remand of April 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran did not respond to the April 2020 letter. Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The presumptive chronic diseases include organic disease of the nervous system, to include sensorineural hearing loss and tinnitus associated with acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). 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 such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for tinnitus The Veteran claims service connection for tinnitus. He contends the high-pitched ringing he experiences in both ears started around 2006. Turning to the evidence of record, service treatment records do not contain complaints, treatment, or diagnosis for tinnitus. No tinnitus was noted at the Veteran’s April 1995 separation examination. Military personnel records indicate the Veteran was an indirect fire infantryman and wheeled vehicle mechanic. In a December 2014 statement, the Veteran asserts that ringing in both ears started about eight years prior. A May 2015 VA examination report noted review of the claims file and medical records, and recounted the Veteran’s complaints and history. The Veteran reported he has a hard time concentrating and sleeping due to his tinnitus. The audiologist opined that the Veteran’s tinnitus was less likely than not (less than 50 percent probability) caused by or the result of military noise exposure. The rationale was that the reported date of onset was 14 years post military noise exposure. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for tinnitus are not met. In the instant case, the May 2015 VA examination report demonstrates that the Veteran has current tinnitus, bilaterally. Moreover, it is acknowledged that the Veteran was likely to have been exposed to load noise, at least intermittently, over his 3 years of service in the infantry. While tinnitus may be a presumptive chronic disease, in this case, it did not become manifest to a degree of 10 percent or more within one year of service separation. In fact, it did not manifest until more than a decade after service separation. Accordingly, service connection may not be presumed. 38 C.F.R. §§ 3.307, 3.309(a). Regarding direct service connection, there is no positive opinion of record to support the claim. The May 2015 VA examiner determined that the Veteran's current tinnitus is less likely than not related to military noise exposure. This opinion was supported by a well-reasoned rationale, which cited the emergence of tinnitus 14 years after service. There is no medical evidence of record that associates his exposure to loud sounds in service and the onset of tinnitus in this case. The Board reiterates that VA could not locate a private medical opinion in the claims file linking the Veteran’s tinnitus to service; and the claims file documents that all reasonable efforts have been made to obtain this evidence, including notification to the Veteran of the unavailability of the private medical opinion and the actions undertaken to obtain such evidence. The only evidence in favor of a nexus between tinnitus and service comes from the Veteran's lay assertions. Although lay persons are competent to report symptoms experienced at any time, as well as provide opinions on some medical issues, the specific disabilities in this case, tinnitus, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 at 1372. In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions that outweighs, or may be given equal weight, to the competent and credible VA medical opinion of record. Thus, the Veteran’s statements regarding any such link are assigned less probative value. In light of these findings of fact, the Board concludes that service connection for the claimed tinnitus is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Edwards, 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.