Citation Nr: 18139883 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-04 466 DATE: October 1, 2018 ORDER Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s earlier dated statements as to continuity of tinnitus symptoms since service are more credible than his more recently dated statements regarding continuity of tinnitus since service. 2. The most probative evidence of record demonstrates that tinnitus was not present in service or manifest to a compensable degree within one year of service discharge and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1990 to August 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously before the Board in August 2017. The August 2017 Board decision denied, in pertinent part, service connection for tinnitus. The Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). A May 2018 Amended Joint Motion for Partial Remand (Joint Motion) requested that the Court vacate that part of the August 2017 Board decision that denied service connection for tinnitus. In May 2018, the Court issued an Order that granted the Joint Motion. As the issue of entitlement to service connection for neuropathy of the bilateral lower extremities had been remanded by the Board’s August 2017 decision, that issue was not discussed in the Joint Motion. The Veteran requested a hearing before Board in his April 2014 substantive appeal. A hearing was scheduled for August 2016. The Veteran did not appear for the hearing, nor did he attempt to reschedule his request. Therefore, the Veteran’s hearing request is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2018). Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a).   Analysis The Veteran is seeking service connection for tinnitus. The Veteran contends that his current tinnitus is related to his service or that it began during service and continued since then. The Veteran’s STRs are silent for complaints, findings, or a diagnosis of tinnitus, including at service discharge in July 1991. The Veteran’s DD-214 notes his primary specialty as ammunition, and reveals that he served in Southwest Asia from November 1990 to January 1991 during operation Desert Shield/Desert Storm. A January 1992 VA audiology note contained the notation "(-) Tinnitus." The audiological portion of a January 1992 VA left shoulder and hearing loss examination noted a progressive hearing loss over the prior two years and further noted that the Veteran "gives no history of tinnitus." In a January 1993 VA record, the Veteran expressly denied ringing in the ears while reporting “unsure” for hearing loss. A June 2007 VA record noted that the Veteran had "ringing in bilat ears: since saudi." In a November 2010 statement the Veteran indicated that he had been going to VA for 19 years, since his return from Saudi Arabia, for problems including tinnitus. The Veteran was afforded a VA examination in August 2011. At that examination the Veteran reported ongoing and constant bilateral tinnitus. He reported that he could not remember when the tinnitus had begun, and admitted a significant amount of recreational and occupational noise exposure post service. The examiner diagnosed tinnitus and found that given the Veteran’s diagnosis of hearing loss, it was as likely as not that the Veteran’s tinnitus was a symptom associated with his hearing loss. The examiner further opined that because the Veteran could not remember a specific date of onset of tinnitus and the extensive history of occupational and social noise exposure, it was less likely than not that his tinnitus was caused by or related to his service, including military noise exposure. In his December 2011 notice of disagreement, the Veteran stated that “I believe that my tinnitus began while serving in the 826th ordinance company in Saudi Arabia in April of 1991." VA records indicate that the Veteran sought treatment for his hearing problems and tinnitus in October and November 2013. At that time, the Veteran noted that he had had “long standing” tinnitus; he estimated for approximately 20 years and that he still experienced such in addition to light headedness. The Board finds that service connection for tinnitus is not warranted. First, there is a current disability, as the Veteran has reported tinnitus. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. A lay person is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Second, there is an in-service injury because the Veteran’s report of noise exposure in service is competent and is consistent with the places, types and circumstances of his service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, the evidence does not support that tinnitus had onset during service or within one year of service discharge. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The STRs are silent regarding any complaints or notations of tinnitus. Furthermore, in a 1993 VA record, the Veteran expressly denied ringing in the ears. In a 1992 VA audiological record, the Veteran reported hearing loss but did not report tinnitus. At the 2011 VA examination, the Veteran could not remember the onset of his tinnitus. Later statements, to include in a June 2007 VA record and a November 2010 statement, indicate that tinnitus began during service. Thus, the Board finds that the Veteran’s reports of tinnitus onset during service and/or within one year of discharge, are competent, but not credible, as there are later conflicting lay statements that tinnitus began during service and because the Veteran likely would have reported tinnitus when he reported hearing loss. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (noting that generally, an absence of evidence of a disorder is not substantive negative evidence, except where the fact would have normally been recorded). Thus, although there is noise exposure during service, there is no in-service onset, finding of a chronic disability during service, or finding of tinnitus within one year of service discharge. As for continuity of symptomatology, although the Veteran is competent to report that he has had tinnitus symptoms since service, the Board finds that the Veteran’s earlier dated statements as to continuity of tinnitus symptoms since service are not consistent with his more recently dated statements, and thus his statements regarding continuity of tinnitus in this regard are not credible. The Veteran’s statements referenced in the Joint Motion are all dated many years subsequent to his denial of ringing in the ears made in 1993 and the negative tinnitus findings from 1992. The 1993 denial of having any ringing in the ears is unambiguous and is not outweighed by the simple fact that multiple later dated statements to the contrary have been made. The fact remains that in 1992 negative findings of tinnitus were noted, and in 1993 the Veteran specifically denied that he had ringing in the ears. Despite multiple chances to do so the Veteran has not challenged the validity of the 1992 and 1993 records, and he has not asserted that those records contain any errors. In sum, the Board finds that the Veteran’s earlier statements and declarations regarding tinnitus symptoms are more credible than his later such statements. As such, the statements referenced in the Joint Motion are not sufficient to establish continuity of symptomatology for tinnitus disorder. Third, the most probative evidence of record indicates that there is not a nexus between the Veteran’s current tinnitus and his in-service noise exposure. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. The 2011 VA examiner found that the tinnitus was not related to the Veteran’s military noise exposure, noting the lack of specific date of onset and the extensive history of occupational and social noise exposure. The examiner related the tinnitus to hearing loss, which is not service-connected. The Board accords this opinion significant probative value as it conceded in-service noise exposure, is based upon a review of the relevant records, and contains a logical and thorough supporting explanation. To the extent the Veteran’s statements purport to provide a nexus opinion between his current tinnitus and service, the Board finds this lay evidence is not competent. Ascertaining the etiology of tinnitus involves considering several factors and knowledge of how those factors interact with the mechanics of human hearing, which requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Accordingly, service connection for tinnitus is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107 (b). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson