Citation Nr: 21027668 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-31 960 DATE: May 6, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran's tinnitus was not incurred in, and is not otherwise related to, active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). The Board remanded the claim on appeal in July 2019 and January 2021 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to his active military service. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include tinnitus, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Turning to the evidence of record, there is no dispute that the Veteran has a current diagnosis of tinnitus. Thus, the first element of service connection has been established. The Veteran's service treatment records (STRs) are silent for any complaints of, treatment for, or a diagnosis of tinnitus. The Veteran contends that his tinnitus is related to hearing loss in service and that he was exposed to noise from jet fighters and other aircrafts as a mail clerk and intelligence administrative clerk. Specifically, he reports that his work location was located on the ground floor of the squadron hanger that was open to the flight line, approximately 50 feet away from where jet fighters and aircrafts were departing and landing. See June 2014 Affidavit; July 2018 Statement of Accredited Representative in Appealed Case; April 2019 hearing transcript. He also reports that he was advised to wear hearing protection but was not provided any. See June 2014 Affidavit. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was administrative, and the Veteran's STRs show that he had mild hearing loss at 6000 hertz in the left and right ears. See December 1966 STR; August 1967 Report of Medical Examination; February 2021 VA opinion (characterizing the Veteran's hearing loss in service as mild). In light of the foregoing, the Board finds that the second element of service connection, an in-service event, also has been established. Turning to the third element of service connection, a casual nexus, the Board finds that this element has not been established. The Veteran has reported that his tinnitus began in approximately the 1980's. See June 2018 VA examination (reporting onset as 1980's); April 2019 hearing transcript (testifying that his tinnitus started later in life, maybe six to seven years after service). Etiology opinions were obtained in December 2013, June 2018, and December 2019. However, the Board has previously determined that those opinions are inadequate. See July 2019 Board Remand; January 2021 Board Remand. Pursuant to the January 2021 Board remand, a VA fee-based etiology opinion was obtained in February 2021. After reviewing the evidence of record and considering the Veteran's in-service audiological results under both the ASA and ISO-ANSI standards, the examiner opined that it was less likely than not that the Veteran's tinnitus was incurred in or caused by his military noise exposure or hearing loss in service. The examiner explained that the Veteran's tinnitus had onset approximately 13 or more years after his military service and that, according to the Institute of Medicine, as the interval between noise exposure and onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. With regards to the hearing loss in service, the examiner explained that hearing loss and tinnitus are diagnoses that often occur together due to damage to the inner ear but are separate pathologies. She noted that one does not cause the other and each can occur in isolation. She concluded that given the time difference between hearing loss and onset of tinnitus, a separate etiology would be assumed. She further noted that determining that etiology could only be obtained by mere speculation, as any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc., would have to be considered in addition to any military noise exposure. Many factors contribute to tinnitus, including genetic predisposition and medical conditions. The Board finds this opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including military noise exposure and hearing loss in service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran's representative contends that the February 2021 opinion is a mere speculation opinion and therefore inadequate, the Board does not find such contention persuasive. See April 2021 Written Brief Presentation. The examiner did not opine that she was unable to provide an opinion without resort to mere speculation. Rather, she indicated that determining the exact etiology of the Veteran's tinnitus would be based on mere speculation as many factors contribute to the development of tinnitus, including noise exposure, genetic predispositions, and medical conditions. Nonetheless, she concluded that it was less likely than not that the etiology of the Veteran's tinnitus was his in-service hearing loss or military noise exposure given the onset of the Veteran's tinnitus and the fact that hearing loss and tinnitus are separate pathologies that can occur in isolation. The Board has considered whether service connection for tinnitus is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a). However, the Veteran does not contend, and the evidence does not show, that he suffered from tinnitus in and since service, or that his tinnitus manifested to a compensable degree within a year of separation. Therefore, tinnitus is not presumed to have been incurred in service. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Based on the foregoing, service connection for 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 the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.