Citation Nr: 21066467 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-26 315 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral tinnitus is denied. Entitlement to service connection for a skin disability, claimed as pseudofolliculitis barbae, is denied. FINDINGS OF FACT 1. The Veteran's currently diagnosed tinnitus was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service. 2. The preponderance of the evidence weighs against a finding that the Veteran has a skin disability at this time. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110 , 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. Criteria for entitlement to service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1972 to November 1975. These matters are on appeal from a February 2013 rating decision. In July 2021, the Veteran testified at a virtual hearing with the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as tinnitus, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110); see also Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (a veteran must show that his manifestations are of sufficient severity, duration, and frequency that they effect his ability to function under the ordinary conditions of daily life). 1. Bilateral tinnitus The Veteran contends that he has bilateral tinnitus that is related to his service. Specifically, he contends that his tinnitus is related to exposure to military noise during field maneuvers as a medic. See Hearing Transcript at page 3. He testified that he did not go to sick call for ringing ears, because he eventually thought it would go away. The service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnosis related to tinnitus. On January 2013 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) examination the Veteran reported a history of recurrent tinnitus for over 20 years. The Veteran presented with a history of military noise exposure as a field medic and possible occupational noise exposure for a short period of time on the railroad. The examiner opined that the Veteran had a diagnosis of clinical hearing loss and that his tinnitus was at least as likely as not a symptom associated with hearing loss. The examiner further opined that tinnitus was less likely than not related to military noise exposure. The rationale was that the Institute of Medicine (IOM) in a 2005 study stated that there was no scientific evidence to support delayed onset of noise-induced hearing loss. The examiner also stated that audiologic evaluation revealed normal sloping to severe bilateral hearing loss 45 years after service. The Board is cognizant of McCray v. Wilkie, 31 Vet. App. 243 (2019), holding that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." However, the Board notes that, in forming her conclusion, the January 2013 VA audiologist only partially relied on the findings of medical literature which does not support a delayed onset of noise-inducted hearing loss. For instance, the examiner noted that the Veteran's hearing loss was diagnosed 45 years post-service and that tinnitus was related to his hearing loss. The January 2013 VA audiologist did not rely entirely on the report in forming her conclusion but, instead, considered all relevant facts in this case. Therefore, the Board finds the January 2013 VA medical opinion is an adequate medical opinion and the most probative evidence of record regarding the likely etiology of the Veteran's current tinnitus. VA treatment records include a December 2015 audiology consultation that indicates a history of three years of exposure to gunfire, loud explosions, and artillery. The Veteran had a negative history of exposure to occupational or recreational noise and presented with a history of ringing in both ears since service. However, the audiologist did not relate the Veteran's tinnitus to his service. The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran has tinnitus that was incurred in or aggravated by his service. Moreover, post-service, the record does not reflect or reference any history of tinnitus until 38 years after discharge from active service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of tinnitus during service coupled with the fact that the onset of tinnitus was not until 38 years post-service, is sufficient to rebut a finding of service incurrence. In this case, the earliest post-service medical evidence of the Veteran's tinnitus was over 38 years after service. This long period without problems weighs against the claim. Moreover, the Board finds that the Veteran's statements and testimony relating his tinnitus to his service are not credible and are afforded no probative value. His contentions relating his tinnitus to service conflict with the absence of treatment evidence for over 38 years after service. Finally, there is no competent medical evidence that the Veteran has tinnitus that is related to his service. To the extent that the January 2013 VA audiologist related the Veteran's tinnitus to his hearing loss, service connection has not been granted for hearing loss. Therefore, hearing loss may not serve as a predicate service-connected disability upon which to base a claim of service connection for tinnitus, and the claim for tinnitus based on "secondary" service connection fail as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated the Veteran's tinnitus. 2. Skin disability The Veteran contends that he has a skin disability, claimed as pseudofolliculitis barbae, that is related to his service. The STRs indicate that the Veteran was treated for pseudofolliculitis barbae. He was given a profile for this disability in March 1975. The Veteran submitted photographs of himself wearing a beard during service. However, post-service VA treatment records are void of findings, complaints, diagnosis, or any treatment of pseudofolliculitis barbae. On January 2013 VA skin diseases DBQ examination the Veteran presented with a history of pseudofolliculitis barbae diagnosed in 1974 for which he was placed on a profile in 1975. He did not shave during most of his service career at which time he grew a beard. The examiner noted that he occasionally had a facial ingrown hair, but that was infrequent. The examiner stated that there was no evidence of pseudofolliculitis barbae on examination. In July 2021, the Veteran testified that constant shaving during service caused the disability. However, he was not currently treating for pseudofolliculitis barbae because he wore the same beard that he had during service. As the competent medical evidence does not show diagnosis of any skin disability, to specifically include pseudofolliculitis barbae, service connection is denied. See Brammer, supra; see also McClain, supra; Romanowsky, supra; Saunders, supra. There is no indication that any subjective complaints of pseudofolliculitis barbae result in functional impairment of earning capacity. See Hunt, supra; Saunders, supra; Wait, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of pseudofolliculitis barbae or any other skin disability and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Therefore, service connection for pseudofolliculitis barbae is not warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.