Citation Nr: 20072885 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 14-31 189 ATE: November 12, 2020 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise shown to be etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1971 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was initially before the Board in May 2018. In May 2018, the Board, in pertinent part, denied entitlement to service connection for tinnitus. The Veteran appealed the Board’s May 2018 denial as to entitlement to service connection for tinnitus to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Memorandum Decision, the Court vacated the Board’s decision to the extent that it denied entitlement to service connection for tinnitus, and remanded this matter back to the Board for development consistent with the Memorandum Decision. Thereafter, pursuant to the August 2019 Memorandum Decision, in June 2020, the Board remanded the claim for further evidentiary development. This issue has now returned to the Board for further review. 1. Entitlement to service connection for tinnitus The Veteran believes his tinnitus is related to his active service. In this regard, during the September 2020 examination, the Veteran reported military noise exposure as a military policeman in the National Guard from 1971 to 1976, specifically due to use of guns with hearing protection. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain chronic diseases, including tinnitus, as an organic disease of the nervous system, 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Also, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the question for the Board is whether the Veteran has tinnitus that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it is otherwise shown to be etiologically related to an in-service injury, event, or disease. The Veteran’s medical records dated proximate to, and during the pendency of, the claim do not reflect chronic complaints related to tinnitus. However, a July 2014 private medical letter endorsed a diagnosis of tinnitus. Additionally, the August 2015 and September 2020 VA examiners documented that the Veteran reported the existence of recurrent tinnitus. Further, tinnitus is the type of disability which a lay person may identify. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds the Veteran has a current disability of tinnitus. The Board concludes that, while the Veteran has tinnitus, which as discussed above, is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309, it is not shown to have manifest in service, or to a compensable degree within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker, 708 F.3d at 1338-39; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Specifically, the Veteran has not reported his tinnitus, or symptoms thereof, onset during service and continued after service, or that such onset was within one year after separation from service. Nevertheless, in a July 2014 private medical letter, C. M. Q., M. D., reported, in part, that since his military service, the Veteran complained of tinnitus. However, the Veteran’s post service medical records do not reflect tinnitus related complaints until many years after separation from service. There are there are no clinical records, or statements from the Veteran, which documented tinnitus, or complaints thereof, prior the Veteran’s claim for tinnitus which was inferred from the July 2014 private medical letter. In this regard, in a November 2003 questionnaire, from the Social Security Administration, in a response to a question regarding the existence of any difficulty concentrating when he watched television, or understanding the shows due to his condition, the Veteran reported he could not see well, had physical exhaustion and dizziness, and had to expend a lot of effort. While the Board recognizes the Veteran did not specifically deny the existence of tinnitus in this record, as tinnitus likely interferes with hearing the television, and as tinnitus is a sensory related symptom similar to the Veteran’s reported difficulty seeing the television, this record also weighs against the claim. Additionally, a January 2004 general medical report, obtained from the Social Security Administration, documented, in part, that as to the Veteran’s ears, and more specifically as to any impairment in hearing, he had no otorrhea and no otalgia. Additionally, private medical records dated in December 2009, January 2010, February 2010, April 2010, June 2010, and December 2011, did not note any tinnitus or related complaints, but instead, as to the Veteran’s ears, documented his external were canals clear. A September 2013 private medical record, as to the Veteran’s past medical history/review of systems regarding his head, eyes, ears, nose, and throat, provided a specific list of issues, including tinnitus; however, tinnitus was not endorsed as a past or current issue. Furthermore, review of the Veteran’s service treatment records does not reflect any documentation of tinnitus, or complaints thereof. Specifically, in an August 1971 medical history questionnaire, the Veteran checked “no” as to the existence of any ear, eye, nose or throat trouble. Additionally, a November 1971 in-service examination, conducted in conjunction with the Veteran’s separation from his service, did not reflect any tinnitus or complaints thereof. Also, in a corresponding November 1971 report of medical history, the Veteran checked “no” as to the existence of any ear nose or throat trouble. In this regard, the Board finds that if the Veteran had experienced tinnitus while in service, it would have been reasonable for him to have reported it during the November 1971 separation examination; however, as discussed, there is no record of a diagnosis of tinnitus, or complaints thereof. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Further, the Veteran has provided inconsistent statements describing when his tinnitus onset which renders any statements as to in service onset less than credible. Specifically, during the August 2015 VA examination, the Veteran reported fluctuating tinnitus and pain in both ears for about one year, which would provide an onset date in approximately 2014. Conversely, during the September 2020 examination, the examiner documented the Veteran did not offer any particular time line for his tinnitus onset, but instead stated he had had it for many years and thought it was normal. In this regard, the description of onset for many years is not synonymous with a finding that tinnitus onset during service or within a year after separation from service. Moreover, the fact that the Veteran generally reported in September 2020 he did not recall when his tinnitus onset generally indicates that he did not, in fact, recall that it onset during his service or within one year of separation from service. Further, the first clinical evidence of tinnitus is provided in a July 2014 private medical letter, which was over four decades years after the Veteran’s separation from service. While not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor that weighs against a finding of service incurrence and continuity. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, as described above, the evidence of record does not demonstrate tinnitus or related complaints since separation from service or for many years thereafter. The Board’s reliance on multiple factors, only one of which is an absence of complaints of, or treatment for, tinnitus during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as applicable precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one factor the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). In weighing the evidence, the Board finds the Veteran’s service treatment records and post service medical records, are more probative than any current contention from the Veteran that his tinnitus onset during service or within a year thereafter, made many years after service for compensation purposes. See Curry v. Brown, 7 Vet 59 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant’s lay testimony). Thus, to the extent the Veteran contends he had chronic symptoms of tinnitus in service, or shortly after service, and ever since, the medical and lay evidence of record does not support this contention. For these reasons, the criteria for presumptive service connection based on chronic symptoms in service, continuous symptoms since service, or that tinnitus manifested to a compensable degree within one year of service separation, have not been met. Service connection for tinnitus may still be granted on a nonpresumptive direct incurrence basis; however, the record contains conflicting medical opinions regarding whether the Veteran’s tinnitus is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). In this regard, in a July 2014 medical letter, a private practitioner, C. M. Q., M. D., reported that since his military service, the Veteran complained of tinnitus secondary to high noises during military operations. However, there is no indication that Q. M. E. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which as discussed above, is inconsistent with his post service medical records dated prior to July 2014, which do not reflect the existence of tinnitus or complaints thereof. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, Q. M. E. did not provide any rationale for the finding that the Veteran’s tinnitus was secondary to high noises during military operations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the July 2014 private medical letter lacks probative value. Conversely, an August 2015 VA examiner provided a negative nexus opinion. However, the August 2019 Memorandum Decision found that, although the August 2015 VA examiner attributed the Veteran’s tinnitus to hearing loss, the examiner failed to explain how the condition was a symptom of hearing loss instead of delayed-onset tinnitus. The August 2019 Memorandum Decision also noted the August 2015 VA examiner documented the Veteran’s report that his tinnitus had begun a year prior to the examination, but found the examiner did not address when the hearing loss may have begun in relation to the tinnitus or provide any other information to understand the negative rationale. Thus, pursuant to the August 2019 Memorandum Decision, the Board remanded the claim in June 2020, in part, for an addendum opinion, or examination, if warranted. The resulting September 2020 VA opinion found that it was less likely than not the Veteran’s tinnitus was caused by or a result of military noise exposure. As a rationale, the September 2020 VA examiner explained that the Veteran reported that he did not know when his tinnitus began, and he did not tie his tinnitus to any event or events while in the active service during the interview. The September 2020 VA examiner further explained that the Veteran served almost fifty years ago and there were no official documents during this Veteran’s early adulthood with complaints of tinnitus in the records. The September 2020 VA examiner further explained the August 2015 examination report revealed bilateral high frequency sensorineural hearing loss (SNHL), that SNHL was the most common condition associated with tinnitus and the third most common chronic condition of aging. Thus, for these reasons, the September 2020 VA examiner also found the Veteran’s tinnitus was most likely associated with his high-frequency SNHL and not exposure to hazardous noise during service. The September 2020 VA examiner also explained there was no scientific support for delayed tinnitus or hearing loss onset after hazardous noise exposure as these conditions immediately followed hazardous noise exposure when the noise dose was significant and the person was susceptible. The September 2020 VA examiner cited a 2006 Institute of Medicine (IOM) report, “Noise and Military Service-Implications for Hearing Loss and Tinnitus,” for a finding that, as the interval between a noise exposure and the onset of tinnitus lengthened, the possibility that tinnitus would be triggered by other factors increased. However, the September 2020 VA examiner also noted IOM’s finding that no longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure. The September 2020 VA examiner explained the IOM committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggested that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely. Notably, the September 2020 VA examiner accepted the current limits of the scientific and medical evidence as to delayed onset hearing loss and/or tinnitus, specifically by acknowledging the contradictory or limiting aspects of the IOM study, and did not rely exclusively on that opinion to support the conclusions reached. McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, the September 2020 VA examiner only partially relied on the findings of the 2006 IOM report and discussed other factors that were contributors to the Veteran’s current hearing impairment. For instance, the September 2020 VA examiner discussed the Veteran’s inability to report when his tinnitus began, or tie it to any event or events while in active service, and that there were no official documents during this Veteran’s early adulthood with complaints of tinnitus in the records. Additionally, September 2020 VA examiner explained that SNHL was associated with tinnitus and aging. Thus, the September 2020 VA examiner did not rely entirely on the IOM report in forming her conclusion but, instead, considered relevant facts in this case. Thus, in weighing the evidence, the Board finds the September 2020 VA examiner’s opinion, is more probative than the July 2014 private practitioner’s opinion, which lacks probative value for the reasons detailed above. Indeed, the September 2020 VA examiner’s opinion was predicated on a full overview of the entire relevant record and the examiner explained the reasons for her conclusions based on review of the record with consideration of the Veteran’s subjective complaints. Thus, the September 2020 VA examiner’s opinion is entitled to substantial probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. Additionally, to the extent the record reflects, as reported by the September 2020 VA examiner, that the Veteran’s tinnitus is associated with his bilateral hearing loss, as service connection for bilateral hearing loss was denied in the May 2018 Board decision, service connection as secondary to such disability cannot serve as a basis for the grant of benefits sought here. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). While the Veteran believes his tinnitus is related to his service, including due to in-service noise exposure, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for tinnitus. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.