Citation Nr: 21022790 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-00 962 DATE: April 19, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include anxiety and anger, is denied. FINDINGS OF FACT 1. The evidence shows the Veteran’s tinnitus did not have its onset in service, nor is it otherwise related to service. 2. The evidence shows that the Veteran has not had an acquired psychiatric disability, to include PTSD, at any time during or proximate to the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for an acquired psychiatric disability, including PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Tinnitus The Veteran asserts his tinnitus is a result of noise exposure in service. At his March 2021 Board hearing, the Veteran reported he did not notice ringing in the ears while in service. The Veteran reported constant ringing in the ears, but he does not remember when it began. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). This includes tinnitus as an organic disease of the nervous system. The Veteran’s service treatment records are silent for complaints of, treatment for, or a diagnosis of tinnitus. As an initial matter, based on the Veteran’s military occupational specialty and combat service, the Board concedes the Veteran’s military noise exposure. The Veteran has a current diagnosis of tinnitus as evidenced by the January 2015 VA examination. The Board has also considered whether the Veteran is entitled to service connection for tinnitus as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Tinnitus is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with tinnitus in 2015, over 40 years after his separation from service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with tinnitus or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 2015 without complaints and/or treatments for tinnitus is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran underwent a VA hearing loss and tinnitus examination in January 2015. The Veteran reported first noticing tinnitus after serving in Vietnam. After reviewing the claims file and examining the Veteran, the January 2015 VA examiner stated the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that tinnitus is most often a symptom of hearing loss, but it also has been related to multiple other causes, such as brain injury, depression, anxiety, high blood pressure, medications and vascular changes in the inner ear secondary to aging. If a reasonable nexus cannot be established between the Veteran’s hearing loss and military service, then it is also difficult to establish a direct link to the tinnitus and military service since tinnitus is most often considered a symptom of the hearing loss. Therefore, based on the available evidence it is my opinion that the current tinnitus is less likely as not caused by or the result of military noise exposure. The Board observes that if the Veteran’s hearing loss had a nexus to service, service-connection for tinnitus would likely be warranted as secondary to hearing loss. However, the Veteran is not service connected for bilateral hearing loss. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is the January 2015 VA opinion, which weighs against the Veteran’s claim. The Board finds that the January 2015 VA examiner’s opinion is due great probative value. The VA examiner provided the opinions based on an accurate understanding of the Veteran’s medical history, on the examiner’s own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided rationale that explains the conclusions and gives insight into the medical aspects of the Veteran’s tinnitus. The Board accepts the VA examiner’s opinion as probative evidence that it is less likely than not that the Veteran’s tinnitus is related to in-service noise exposure. The only evidence indicating an association between the current tinnitus and active duty are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of tinnitus is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. PTSD with anxiety anger The Veteran asserts he has an acquired psychiatric disability, to include PTSD, due to the stress from involvement in the Tet offensive while serving in the Republic of Vietnam. In a June 2015 statement, the Veteran stated he became an alcoholic for years, had nightmares, and still does at times. He stated it has affected his relationships and his ability to hold down a job for very long. He stated he knew he killed a young boy who was shooting at him. At his March 2021 Board hearing the Veteran testified that he did not feel like he had PTSD. He stated he has not sought treatment for PTSD, and he has never had a diagnosis. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If the evidence establishes that a veteran engaged in combat with the enemy and that the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the present case the Veteran has not been diagnosed with an acquired psychiatric disability. The Veteran’s VA treatment records show negative screens for PTSD and depression. The Veteran’s medical records are silent for mental health treatment. In January 2015, the Veteran was afforded a VA examination. The examiner noted the Veteran was not diagnosed with any acquired psychiatric disability. The Board acknowledges the Veteran’s reports that he has suffered from stress and nightmares. Although lay persons are competent to provide opinions on some medical issues, the specific issue under discussion here falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Establishing a psychiatric disability for VA purposes requires a diagnosis conforming to the criteria as set forth in the DSM-5. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a psychiatric disability. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis of an acquired psychiatric disability conforming to the DSM-5. Accordingly, the Board finds that the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disability, to include PTSD, is not warranted. 38 U.S.C. § 5107 (b). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.