Citation Nr: 21003134 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-45 688 DATE: January 19, 2021 ORDER Service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s tinnitus was present in service, within one year after separation from service, or is otherwise related to service, to include to any in service incurrence, event, or injury. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 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 from April 1987 to April 1991. In a decision issued in November 2018, the Board, in pertinent part, denied entitlement to service connection for tinnitus and lumbar and cervical spine disorders. The Veteran appealed those denials to the United States Court of Appeals for Veterans' Claims (Court). In October 2019, the Court issued an Order that vacated the Board's November 2018 decision and remanded these matters on appeal for adjudication consistent with the instructions outlined in the October 2019 Joint Motion for Partial Remand (JMPR) by the parties. In June 2020, the Board remanded these claims for additional development. During the pendency of the appeal, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a lumbar spine disorder and a cervical spine disorder. These grants of service connection constitute a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Accordingly, those matters are no longer in appellate status. Entitlement to service connection for tinnitus. 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; 38 C.F.R. § 3.303(a). To establish service connection, 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). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is competent evidence to suggest that the Veteran currently has tinnitus. See November 2020 VA Examination report. The Board also acknowledges that the Veteran appears to have had trauma to his ears as a result of a diving accident in 1989. In that regard, service treatment records (STRs) reflect that in October 1989, the Veteran had problems with right ear hearing, heard a popping and cracking sensation, and was diagnosed with barotrauma of the right ear. Based on this evidence, the Board finds that the first two elements of service connection are met. Thus, what must still be shown to establish service connection for tinnitus is a nexus to service. After reviewing the claims file, the Board finds the preponderance of the evidence suggests no causal relationship between the Veteran’s tinnitus and his service to establish service connection. In pertinent part, in November 2020, the Veteran underwent a VA audiological examination to evaluate the etiology of his tinnitus. The examiner rendered a diagnosis of recurrent tinnitus and provided a negative nexus opinion. The examiner acknowledged the Veteran’s reports of experiencing tinnitus due to a diving accident in 1989 and the article submitted by the Veteran titled “Impact of Noise on Hearing in the Military.” The examiner explained, however, that the Veteran’s service medical examinations from 1987, 1989, and 1991 showed normal hearing acuity. The examiner indicated that, based on the time since separation and the intermittent nature of the Veteran’s tinnitus (reported in 2013), it was less likely than not that tinnitus was the result of military noise exposure and explained that the interval between noise exposure and the onset of tinnitus lengthens the possibility that tinnitus will be triggered by other factors. The examiner also noted the October 1989 STR that showed infected and bulging tympanic membrane (eardrum) and the diagnosis of barotrauma and stated that hearing loss and tinnitus associated with middle ear pathology were typically temporary when the pathology was active. There are no contrary opinions of record. In this regard, it is noted that the Veteran was also provided a VA examination in September 2013. However, as the October 2019 JMPR found this opinion to be inadequate, the Board remanded for another VA medical opinion, which was completed in November 2020. See June 2020 Board remand. The Board acknowledges the Veteran’s contentions that his tinnitus has been ongoing since service and was the result of being exposed to loud noises and/or a 1989 diving accident. See June 2020 Statement in Support of Claim. To the extent that this statement suggests that his current tinnitus began during active duty service and persisted, the Board finds that it is contradicted by the more probative evidence of record. In that regard, the Veteran’s STRs, to include the April 1991 separation examination, are silent for reports of tinnitus and document clinically normal ears. Moreover, although the Veteran reported recurrent tinnitus during the August 2013 VA compensation and pension examination, VA treatment records from April 2014 document the Veteran’s denial of symptoms for tinnitus. Significantly, the Veteran appears to have received treatment from the VA since May 1999. However, his VA treatment records are silent for reports of tinnitus/hearing problems until February 2015. The Board finds the Veteran’s VA treatment history to be more probative with respect to whether he has had recurrent tinnitus because statements made for treatment purposes are generally more probative than statements made for disability compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). As such, the Board finds that the Veteran’s statements regarding continuity of symptomatology are not consistent with his overall treatment record and are outweighed by the more probative November 2020 VA medical opinion. Likewise, the preponderance of the evidence is against a finding of chronicity or continuity of symptomatology since service. In sum, the Board finds that the preponderance of the evidence is against a finding that a nexus exists between the Veteran’s tinnitus and his active duty service, to include his 1989 diving accident and any in-service noise exposure. Namely, the more probative evidence of record establishes that there is no link between the Veteran’s tinnitus and his active duty service. Moreover, there is no probative evidence that tinnitus manifested within one year after separation from active duty service in April 1991 so as to warrant service connection on a presumptive basis. Accordingly, the Veteran’s claim of entitlement to service connection for tinnitus must be denied. 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.