Citation Nr: 18148843 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-35 181 DATE: November 8, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus 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, event, or disease. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1975 to April 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veteran Affairs (VA). Service Connection Under the relevant laws 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. Generally, the evidence 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 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for tinnitus The Veteran asserts an entitlement to service connection for tinnitus due to his military service in the Navy from April 1975 to April 1981. The Veteran contends that his work in the ship’s engine room caused his tinnitus. Based on the evidence of record, the Board determines that service connection is unwarranted. As an initial matter, the service treatment records do not reflect complaints of tinnitus at any point during his active duty service. Importantly, the Veteran underwent a number of physical examinations during service and never mentioned tinnitus on any of these occasions. Most notably, at his separation examination in March 1981, he did not mention any symptoms of tinnitus. Next, the evidence does not indicate that tinnitus was shown until many years after service. In fact, in the case, the first indication of tinnitus was not until he filed his claim for service connection in March 2015, and approximately 34 years after he left active duty service. Therefore, a continuity of symptoms has not been shown based on the clinical evidence. Moreover, as tinnitus was not observed within one year of active duty service, service connection is not warranted as a chronic disease under 38 C.F.R. § 3.309(a). The Board notes that, the absence of medical records notwithstanding, he has experienced tinnitus symptoms since service. Here, while the Veteran is competent to report experiencing symptoms of tinnitus since service and consistently since service, the Board finds that a continuity of symptoms cannot be found based solely on the Veteran’s statements. Specifically, the Veteran stated at his VA examination in July 2015 that his tinnitus began only ten years ago. Therefore, since his reports are inconsistent, the Board may not rely them for service connection purposes. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Next, service connection for tinnitus may still be granted if the clinical evidence otherwise indicates a relationship between active duty service and his current symptoms. However, the evidence does not reflect that such a nexus exists. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Specifically, during a July 2015 VA examination, the examiner acknowledged the Veteran’s diagnosis of clinical hearing loss, and noted that his tinnitus is at least as likely as not a symptom associated with the hearing loss. However, the Veteran is not service connected for hearing loss, and the examiner determined that tinnitus is not at least as likely as due to military noise exposure. In support of this opinion, the examiner noted that several hearing tests during active duty service in the Navy between 1974 and 1981 with no shifts in hearing and tinnitus did not begin until decades later. The Board also reiterates that no complaints of tinnitus were noted in service. The Board recognizes that Veteran’s statements that his Navy work environment as the reason for his tinnitus. Specifically, he stated that he worked in the ship’s engine room and although, he wore hearing protection, one ear would frequently be exposed to hear external noises such as the phone ringing and speaker announcements. He further stated that only his right ear is affected with both hearing loss and tinnitus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, while the Veteran is competent to testify as to the nature and etiology of his tinnitus, as it is a disorder diagnosed purely on his symptoms. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to the Veteran’s hearing loss, which is unrelated to his military service. VA treatment records failed to mention the Veteran’s symptoms of tinnitus. As a result, the evidence does not indicate that the Veteran’s tinnitus is related to service. Therefore, service connection is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. McGee, Law Clerk