Citation Nr: 19191908 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 17-12 277 DATE: December 6, 2019 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT Tinnitus was not caused or aggravated by the Veteran’s service and was not manifest during service or within one year of separation from active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1973 to July 1977. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision that denied service connection for tinnitus, issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, NC. The Veteran testified before the undersigned Veterans Law Judge at an April 2019 hearing, and a transcript of this hearing is of record. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including tinnitus, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303 (b). If the evidence is competent, the board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which she has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Of note, the Court of Appeals for Veterans Claims has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Entitlement to service connection for tinnitus discussion The Veteran contends that his tinnitus is due to his military service. After considering the record, the Board concludes that the weight of the evidence is against a finding that the Veteran’s current tinnitus is caused by active service or any incident therein, to include noise exposure from aircraft. The Veteran is a layperson capable of observing tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377. Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. Thus, a current disability is established. The record also indicates that the Veteran was exposed to loud noises, including weapons, aircraft, and vehicular noise while in service. As such, there is sufficient evidence of a possible in-service injury related to his current tinnitus. The remaining requirement for service connection is a causal nexus. In answering this, the Board has done a review of the Veteran’s records. The Veteran served in the United States Army from March 1972 to July 1977. A review of the Veteran’s service treatment records (STRs) reveals that the Veteran neither complained nor sought treatment for tinnitus during active service, nor records of the aforementioned video which the Veteran reports caused his tinnitus. The Veteran’s exit examination in March 1977 found the Veteran’s ears to be clinically normal. See March 2016 STR-Medical pg. 27. Furthermore, the Veteran’s March 1977 Report of Medical History shows that the Veteran did not report any ringing of the ears. Id., at 31. The Board notes that after separating from service, the Veteran went to an audiology consultation in June 2011. There, the Veteran denied experiencing tinnitus. See April 2016 CAPRI, pg., 308. The records show that the Veteran also denied tinnitus during a clinic visit in October 2014. Id. At 252. The Veteran then denied experiencing tinnitus once again at a primary care appointment in March 2015. Id. at 245. The first instance of the Veteran reporting ringing of the ears comes in January 2016, as part of his initial claim. There, the Veteran stated that “every once in awhile I get a short bout of tinnitus.” The Veteran cited the “very loud sounds of the heavy equipment I was operating” as being the in-service stressor. See January 2016 Correspondence. The Veteran was subsequently provided a VA examination in March 2016. There, the examiner performed an in-person examination and reviewed the Veteran’s VA e-folder. At the examination, the Veteran “reported experiencing noise exposure from weaponry (M16 and M14) and heavy equipment (cranes, 5-ton, 10-ton, transport trucks, all terrain fork lifts, bulldozers, rollers, scrapers, graders, loaders, and ditchers), and aircraft from working near a flightline.” The examiner also noted that the Veteran worked for 2 years as a truck driver, though the Veteran stated in his subsequent board hearing that his length of employment was 1 year. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by military service. In his rationale, the examiner noted an onset of over 30 years after separation, work history, and the Veteran’s previous denials of tinnitus. See March 2016 C&P Exam. The Veteran testified during a board hearing in April 2019. There, the Veteran offered a new theory as to the cause of his tinnitus. He stated: “I was watching a movie about heavy equipment operator at the time. It was provided by the command and we were all sitting outside. My ears started ringing and I didn’t know what the hell was going on. The reason I remember it is it started happening during the movie that had to do with my occupation.” See April 2019 Hearing Transcript, pg. 3. The Veteran further stated that the reason for his previous denials of tinnitus was because he did not know what tinnitus was. Id., pg. 5. Entitlement to service connection for tinnitus analysis In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for tinnitus is not warranted. The Board has considered the Veteran’s condition under the presumptive service connection regulations for chronic diseases. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (2016). However, the Veteran’s condition was not shown to exist within one year of discharge of active duty service. The Veteran was discharged from active duty service on July 1977. The first report of tinnitus comes in January 2016. See VA 21-526EZ. There are no medical records to indicate an earlier diagnosis, the Veteran did not indicate any ringing of the ears in his exit examinations, explicitly denied tinnitus throughout the years, and the Veteran has not provided evidence showing continuity of symptoms. Thus, service connection cannot be granted on a presumptive basis. The next question before the Board is whether direct service connection is warranted. As stated above, the Veteran has met the first and second elements. The issue before the Board is therefore that of the nexus element. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d per curiam, 78 F.3d. 604. The Board has considered the Veteran’s testimony. However, due to the inconsistency shown between the Veteran’s statements regarding the existence of tinnitus and the cause of the injury reduces the probative weight afforded to his lay testimony. First, there is inconsistency in the record as to the Veteran’s initial denials of tinnitus and his subsequent claim. As stated above, the Veteran did not report ringing of the ears when he separated from service. And post-service, the Veteran denied tinnitus on two separate occasions. And while the Board acknowledges the Veteran’s claim that he did not know the definition of tinnitus, we find that the inconsistencies serve to reduce the probative weight of the Veteran’s lay statements. Secondly, there are inconsistencies in the Veteran’s statements as to the cause of his tinnitus. The Veteran indicated in January 2016 that his tinnitus was caused by exposure to rifle and machine gun fire, as well as heavy equipment that he operated. He again stated in his March 2016 VA Examination, in detail, that his in-service event that caused his hearing loss and tinnitus was exposure to weapon and vehicular noises. It was not until April 2019, at the Veteran’s board hearing, that he testified about watching a movie about operating machinery 1976 as the moment of onset for tinnitus. According to the Veteran’s testimony before the Board, he immediately noticed tinnitus during the screening of the movie. The Board finds that the inconsistency in these statements also reduces the probative value of his lay statements. In contrast, the Board finds that the June 2018 VA examination warrants significant probative weight. The examiner performed an in-person examination, reviewed the Veteran’s medical and military history. In opining that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, the examiner offered a fully reasoned rationale, noting the Veteran’s military and post-military employment, previous denials, and that over three decades passed between the Veteran leaving service, and his claim for tinnitus. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (noting that the trier of fact should consider evidence of a prolonged period without medical complaint along with all the relevant facts and available evidence). In summary, the Board finds that the medical evidence is more probative and more credible than the lay opinions of record. Therefore, the preponderance of the evidence is against finding a causal nexus between the Veteran’s military service and her current tinnitus. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to a compensable for bilateral hearing loss Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran’s bilateral hearing loss is currently rated as noncompensable, pursuant to 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. Service connection was granted in April 2016, with an effective date of September 2015. The Veteran’s hearing was last evaluated during the March 2016 VA examination, which took place over three years ago. The Veteran contends he is entitled to a compensable rating due to an increase in severity in hearing loss. This is evidenced by the Veteran’s testimony that his spouse’s complaints regarding the volume of his television, and that his worsening of hearing has been noticed by other people as well. See April 2019 Board Hearing. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Considering the Veteran’s reports of worsening of hearing since his last VA examination, coupled with the passage of time, indicates a degree of worsening which triggers the need of a VA hearing evaluation. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). The Board finds that a new examination is necessary to adjudicate the claim. The matter is REMANDED for the following actions: Provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran’s bilateral hearing loss disability. The entire claims file must be provided to the examiner for review. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The examiner should provide a rationale for any conclusions reached. The Board notes that the Veteran is competent to report his symptoms and history. After any additional development deemed warranted, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369. (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.