Citation Nr: 21027227 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-20 719A DATE: May 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a prostate disorder, to include an enlarged prostate, is denied. REMANDED Entitlement to service connection for temporomandibular joint (TMJ) is remanded. FINDINGS OF FACT 1. Noise exposure is consistent with the circumstances of the Veteran's service. 2. The Veteran is competent to report that he has experienced ringing in the ears since service. 3. The preponderance of the evidence is against finding that the Veteran's enlarged prostate began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for a prostate disorder, to include an enlarged prostate, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1978 to December 1998. The Board previously remanded this case for additional development in June 2020. The matter has now returned to the Board for appellate review. As an initial matter, the Board observes that the Veteran has been granted service connection for ureterolithiasis and syncope by the Regional Office (RO) in a January 2021 rating decision. As such the Veteran has received a full grant of benefits for these claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he contends began during his active military service. Certain chronic diseases, including organic diseases of the nervous system (including tinnitus), 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 of time 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). Initially, the Board observes that service treatment records do not reveal any particular complaints or a diagnosis of tinnitus. At a September 2020 VA examination the Veteran was diagnosed with tinnitus. The examiner opined that it is less likely than not that the Veteran's tinnitus was incurred in or caused by the Veteran's active military service. In support of this conclusion, the examiner found that although the Veteran's service treatment records reflect complaints for ear, nose, and throat issues, there was no nexus of auditory damage on active duty to relate the current report of tinnitus to military noise. Tinnitus is the type of disorder associated with symptoms capable of lay observation (e.g., ringing or buzzing in the ears). See Charles v. Principi, 16 Vet. App. 370 (2002). Despite the negative VA opinion of record, the Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the evidence shows a current diagnosis of tinnitus. Although the Board is presented with no record of complaints of ringing in the ears in service or for many years thereafter, the Veteran's report of his duties while serving as an aerospace physiologist evidence significant noise exposure. As a layperson, he is competent to report that he has experienced ringing in his ears since service. See Layno v. Brown, 6 Vet. App. 465 (1994). Although there is no objective evidence to support a specific incident of acoustic trauma in service, and there is significant clinical opinion against the claim, the Board accepts the Veteran's statements as competent and credible as to his having been exposed to noise in the military and ringing in the ears that continued thereafter. Therefore, after review of the record, the Board finds that evidence is in relative equipoise, such that a finding of tinnitus of service onset may be conceded. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for tinnitus. 38 U.S.C. § 5107. 2. Entitlement to service connection for a prostate disorder, to include an enlarged prostate The Veteran contends that he has an enlarged prostate because of his active military service, and he seek service connection. Turning to the record, the Veteran's service treatment records are silent as to any diagnosis or treatment for any prostate disability during active service. Military medical center treatment records from September 2007 reveal that the Veteran was diagnosed with hypertrophy (benign) of prostate without urinary obstruction. In April 2009, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner determined that the Veteran had a diagnosis of an enlarged prostate with poor stream and a cyst in right kidney. However, the examiner did not render any etiological opinion as to the Veteran's claimed prostate disorder. In accordance with the Board's June 2020 remand, another VA examination was conducted to determine the nature and etiology of the Veteran's claimed prostate disorder. At the time of the examination, diagnoses of erectile dysfunction and benign prostatic hyperplasia were rendered. The Veteran reported that his symptoms began in 1987. The examiner opined that the Veteran's claimed prostate disorder was less likely than not incurred in or caused by the Veteran's active military service. In support of this conclusion, the examiner explained that the onset of the Veteran's enlarged prostate is clearly shown to have been post-service, since it is first noted in treatment records from September 2007. Based upon the foregoing evidence, the Board finds that service connection for an enlarged prostate is not warranted. In so finding, the Board observes that the Veteran did not complain of, was treated for, or diagnosed with an enlarged prostate during his active duty service. Other than the Veteran's contention that he has an enlarged prostate because of his service, the medical evidence of record does not suggest that the Veteran's enlarged prostate was incurred in or caused by his military service. Rather, the probative January 2021 VA examiner rendered a negative etiological opinion. The Board acknowledges that the Veteran himself has claimed his enlarged prostate is directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., difficulty urinating; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). For the foregoing reasons, the Board finds that service connection for an enlarged prostate must be denied. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran contends that his TMJ is attributable to his active military service and he seeks service connection. In accordance with the Board's June 2020 remand, a VA examination was conducted and a VA medical opinion was obtained in October 2020. However, while the examiner found a diagnosis of TMJ, the examiner did not render any etiological opinion with respect to the diagnosis. An addendum opinion was provided in January 2021. Bruxism was discussed, but in that opinion it was concluded that TMJ was not present. These contradictions require further clarification. Therefore, to ensure compliance with the June 2020 remand directives, and to ensure that any decision rendered in the Veteran's appeal is based on sufficient evidence, the Board finds that another VA medical opinion should be obtained to determine whether the Veteran's TMJ is related to his active military service. The matters are REMANDED for the following action: Return the October 2020 examination reports to the prior examiner, or a similarly situated examiner for addendum opinions. (If determined necessary, schedule the Veteran for VA examinations with examiner(s) of appropriate expertise to determine the nature and etiology of the claimed TMJ). In either case, the examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The examiner must provide an opinion as to whether the Veteran's claimed TMJ is at least as likely as not (50 percent or greater probability) caused by or results from the Veteran's active service. In providing the requested opinions, the examiner(s) should refer to the pertinent evidence of record, including the Veteran's lay statements in support of his claim. The significance of any bruxism, and any relationship to the claimed TMJ should be set out. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. Please reconcile the findings set out above as to whether a TMJ exists, with reference to all pertinent findings in the record. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including 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. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Association 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.