Citation Nr: 21065855 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-10 238 DATE: October 27, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran's tinnitus did not manifest in service or within one year thereafter and is not otherwise related to his military service. CONCLUSION OF LAW Tinnitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy Reserve from June 2003 to February 2011, which included a period of active duty for training (ACDUTRA) from April 2008 to July 2008, a period of active duty for special work (ADSW) from July 2008 to September 2008, and a period of ACDUTRA from March 2009 to August 2009. VA has granted service connection for major depressive disorder and adjustment disorder based on those periods of ACDUTRA and ADSW. As such, they constitute periods of active service for VA compensation purposes. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2015. A transcript has been associated with the claims file. The Board remanded the case for further development in June 2018. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had originally included the issue of entitlement to service connection for a right ankle disorder. However, in an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for that disability. Thus, the benefits sought on appeal have been granted in full, and the issue is not currently before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system, including tinnitus, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. The Veteran's service treatment records are negative for complaints, treatment, or diagnosis of tinnitus. The Board notes that neither tinnitus nor manifestations sufficient to identify the disease entity are shown during the Veteran's military service. The pertinent regulations require that manifestations are "noted" in the service records and that is not the case in this instance. Therefore, while currently diagnosed tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of tinnitus were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, the most competent, credible, and probative evidence does not show that the Veteran had tinnitus that manifested within one year of his military service. Indeed, there is no documentation of the disorder for years thereafter. A September 2014 VA examiner found that the Veteran's hearing was within normal limits bilaterally and noted that he had denied any prior history of ear-related problems or surgeries. The Veteran told the examiner that the condition started in 2004 or 2005. It was noted that his military occupational specialty (MOS) was electronics technician, and the Veteran reported that he had military noise exposure from small arms fire for qualifying, 5-inch guns aboard ship, generator rooms, radar rooms, and aircraft. He also indicated that he worked as a civilian in computer networking for approximately 15 years and had recreational noise exposure from hunting and shooting, but used double hearing protection. The examiner opined that his current tinnitus is less likely than not related to military service. He explained that the service treatment records did not show no evidence of a report of tinnitus during military service and that there was no valid audiometric data to establish a threshold shift while in service. Thus, given the Veteran's low probability of hazardous noise exposure and the fact that there is no evidence of a report of tinnitus during military service, it was less likely than not that the Veteran's tinnitus is a result of military service. In May 2020, a different VA examiner reviewed the record and conducted a telephone interview with the Veteran. The examiner noted the Veteran's military occupational specialty as an IT instructor had a low probability of hazardous noise exposure. Audiograms in service also revealed normal hearing with no significant shift in hearing thresholds, and there was no report of tinnitus in service. The Veteran reported having military noise exposure from computer servers and aircraft, and he denied any pre- or post-service noise exposure. He reported noticing tinnitus during service, but he was unable to state a specific date of onset or triggering event. The examiner opined that the Veteran's tinnitus is less likely than not related to noise exposure during military service. She explained that, although the Veteran reported noise exposure from aircraft noise and server noise, he had a military occupational specialty with a low probability of hazardous noise exposure and no report of tinnitus in service file. She reiterated that he had normal hearing during service with no shift in hearing thresholds. In addition, the examiner noted that there was no report of combat duty and indicated that there are known effects from the normal aging process and environmental factors associated with tinnitus, such as medications, disease, and smoking. The Board does acknowledge the Veteran's statements that his tinnitus began in service. During the November 2015 hearing, he testified that he first noticed the ringing in his ears on the last hearing examination around 2006 to 2007. He indicated that the examiner told him he was pressing the button too many times and to get back in the booth and try again. The Veteran stated that he realized something was different after the examination. He also testified that he told his chief petty officer about it, but was advised not to say anything because "if you exhibit any type of permanent medical disability, that they'll bounce you out of the Navy." See November 2015 hearing transcript, pgs. 13-20. Although lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has had tinnitus since his military service. However, his allegations are inconsistent with the contemporaneous record. There is no evidence of any complaints, treatment, or diagnosis in service. On during his November 2007, November 2008, and October 2009 periodic health assessments, including after the alleged date of onset of tinnitus, he consistently denied having any health problems. Moreover, there is evidence of some potential intercurrent causes for the Veteran's tinnitus. Although he denied any pre- or post-service noise exposure at the hearing and during the May 2020 VA examination, he told the September 2014 VA examiner that he had recreational noise exposure from hunting and shooting. The May 2020 VA examiner also noted other risk factors. In addition, the Veteran has provided inconsistent reports regarding the onset of his tinnitus. He told the September 2014 VA examiner that the disorder began from 2004 to 2005, whereas he testified at the November 2015 hearing that his tinnitus began around 2006 to 2007. He later told the May 2020 VA examiner that he could not remember any specific date of onset. Furthermore, the Veteran's testimony that he first noticed ringing in the ears during his last audiogram and that the disorder interfered with the examination is inconsistent with the medical evidence of record, as his hearing was normal during service with no significant threshold shifts found. Indeed, the November 2007 audiogram was completely normal. See May 2020 VA examination report. Thus, there is affirmative evidence showing that tinnitus did not interfere with audiological testing in service. For these reasons, the Board finds that the Veteran's reported history regarding the onset of his tinnitus is unreliable and not credible. Moreover, based on his inconsistent reports, it is unclear as to whether the disorder would have manifested during a period of active service. The Board also finds that the September 2014 and May 2020 VA opinions are highly probative, as they were based on a review of the claims file and supported by thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has also considered the Veteran's own lay statements that his current tinnitus is related to his military service. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the etiology of tinnitus, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the September 2014 and May 2020 VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge. The examiners also reviewed the claims file and considered the Veteran's reported history. Based on the foregoing, the weight of the competent, credible, and probative evidence does not show that the Veteran has current tinnitus that manifested in service or within one year thereafter or that is otherwise causally related thereto. Therefore, the Board finds that the preponderance of the evidence weighs against the claim and that service connection is not warranted for tinnitus. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.