Citation Nr: 21065278 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-16 248 DATE: October 25, 2021 ORDER Service connection for tinnitus is denied. FINDING OF FACT Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 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 June 1964 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board, in pertinent part, denied service connection for tinnitus, and the Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial remand (JMPR), which vacated and remanded the Board's January 2020 decision with respect to such issue. In June 2021, the Board remanded the matter for additional development and the case now returns for further appellate review. 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his tinnitus is related to noise exposure during his military service. Specifically, he reports that he was exposed to excessive noise from generators without hearing protection. Therefore, the Veteran claims that service connection for such disorder is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, such is a disorder that can be identified through lay observations alone and, while he denied the presence of tinnitus on a single occasion in December 2018, he has otherwise reported experiencing tinnitus throughout the pendency of the claim. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, such diagnosis was confirmed at the October 2018 and February 2020 VA examinations. Additionally, while the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to tinnitus, his reports of in-service noise exposure are consistent with his military occupational specialty of an ordinance supply specialist. Therefore, the Board finds his reports of in-service noise exposure to be competent and credible. Thus, the remaining inquiry is whether the Veteran's tinnitus is related to his military service, to include his noise exposure therein. In this regard, an October 2018 VA examiner opined it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. In support of such opinion, he noted that the Veteran's STRs, to include his 1966 separation examination report, do not reflect complaints of tinnitus, and the Veteran himself reported that his tinnitus symptoms started after service in 1976, ten years after service. Consequently, the VA examiner ultimately opined there is no evidence showing that the Veteran's tinnitus is connected to service. In the January 2020 decision, the Board afforded great probative weight to the October 2018 VA examiner's opinion and denied service connection for tinnitus. However, in the February 2021 JMPR, the parties found the Board should have addressed whether the VA examiner's opinion was adequate in light of the conflicting evidence of record regarding the reported date of the onset of the Veteran's tinnitus symptoms. In particular, the parties noted the VA examiner based the opinion, in part, on the Veteran's report of an onset of tinnitus in 1976, ten years after his separation from service. Conversely, the Veteran testified at the November 2019 hearing that he had noticed ringing in his ears approximately one to two years after service discharge and later stated that such symptoms had been intermittent since the early 1970s. While the January 2020 Board decision reflected a discussion of the Veteran's conflicting reports regarding the onset of his tinnitus symptoms, the Board found that, as the October 2018 VA examiner did not have the opportunity to address such statements and the Veteran subsequently submitted additional evidence, to include an assertion regarding the possibility of delayed-onset tinnitus and general medical literature in support of such premise, the Board remanded the case in June 2021 in order to obtain an addendum opinion addressing the etiology of the Veteran's tinnitus. Later that month, a VA examiner reviewed the record and opined that the Veteran's tinnitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, she noted that, in October 2018, the Veteran reported that he did not have tinnitus while serving on active duty; rather, he was evaluated for such disorder in 1976. The examiner also observed that, while he denied experiencing tinnitus on active duty, he reported that such started one to two years after separation in November 2019. Finally, she noted that the Veteran indicated that his tinnitus started in 1974-1975 in February 2020. In regard to such conflicting statements, the examiner observed that the Veteran consistently stated that he did not have tinnitus on active duty or within one year of separation and he never provided a nexus between the onset of his tinnitus and his military service. The examiner further explained that tinnitus is a subjective complaint and no objective measure exists to verify the presence or absence of such disorder. She also noted that the etiology of such disorder cannot be determined using current clinical technologies; rather, etiology is typically inferred by patient history and a review of medical records. In the instant case, the examiner observed that the Veteran's STRs showed no record of complaint or treatment for tinnitus, he reported that he never had tinnitus in service or within one year of separation, and he most recently reported the onset at least 6 years after separation. She noted that it is widely accepted that noise-induced tinnitus occurs at the time of noise exposure and does not develop years later. In this regard, the examiner indicated that the general medical literature provided by the Veteran stated that more research was done on mice and does not provide any concluding evidence of delayed onset tinnitus. She further found that, per the Institute of Medicine (2006) report, " as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increase." Consequently, based on the foregoing, the examiner concluded that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The Board affords great probative weight to the June 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, as the June 2021 VA examiner's opinion addressed all of the Board's inquiries, the Board finds that there has been substantial compliance with the June 2021 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). With respect to the general medical literature suggesting the possibility of delayed onset tinnitus submitted by the Veteran, the Board notes that the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion, Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given appellant's claim. In the present case, the general medical literature submitted by the Veteran fall into this general category as they do not pertain specifically to him and are not combined with an opinion rendered by a medical professional addressing his specific case. Thus, such evidence is not probative as to the issue on appeal. The Board further notes that, while the Veteran is competent to report the nature of his in-service noise exposure and relevant symptomatology, to include the onset of symptoms related to tinnitus, he, as a lay person, does not have the requisite training and experience necessary to address complex medical matters such as the etiology of such disorder. Specifically, the etiology of tinnitus involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, in that such requires knowledge of the impact noise exposure has on the inner workings of the ear. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's statements pertaining to the etiology of his tinnitus are afforded no probative weight. The Board further finds the Veteran's report that his tinnitus had its onset during basic training in 1964 in May 2019 or within one year of service in November 2019 to be not credible as such are contradicted by the remainder of the evidence of record, to include his own statements. In this regard, he has been inconsistent in his report as to when his tinnitus began. Specifically, he has variously reported its onset in basic training in 1964, within one to two years of his separation from service in June 1966, in 1974-1975, and 1976. Most notably, after the Veteran indicated in May 2019 that the October 2018 VA examiner misstated his reported onset of tinnitus in 1976 as such began in basic training in 1964, he then reported that such began one to two years after his separation from service in 1966 in November 2019 and in 1974-1975 in February 2020. Furthermore, in his May 1966 Report of Medical History completed at the time of his separation from service, he denied ear, nose, or throat trouble and hearing loss. Therefore, due to the inconsistency in the Veteran's statements, and the lack of any supporting contemporaneous evidence, the Board finds he is not an accurate historian regarding the onset of his tinnitus. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Similarly, as the probative evidence fails to demonstrate that the Veteran's tinnitus manifested within one year of his separation from active duty, presumptive service connection for such disorder is not warranted. In this regard, as noted previously, his reports as to onset of his tinnitus are not credible. Furthermore, he denied ear, nose, or throat trouble and hearing loss at the time of his May 1966 separation examination, denied experiencing tinnitus in December 2018, and reported that his tinnitus was intermittently, rather than continuously, present over the years. Consequently, presumptive service connection for tinnitus, to include on the basis of a continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.