Citation Nr: 21070104 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-62 331 DATE: November 23, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran does not currently have tinnitus and even assuming he does have tinnitus, it 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 etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been 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 served on active duty from December 1970 to September 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Board previously remanded this claim as part of a July 2021 decision following a February 2021 hearing. Of relevance, the Board also remanded service connection for bilateral hearing loss for additional development, following which service connection for bilateral hearing loss was granted. The RO's award of service connection for that claim constitutes a full grant of the service connection benefit sought; thus, that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for tinnitus is denied. The Veteran seeks entitlement to service connection for tinnitus. For reasons outlined below, the Board finds service connection is not warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as tinnitus, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The elements of service connection are: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the Veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154; 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. Turning to the relevant evidence of record, upon entrance the Veteran was clinically evaluated as normal. See October 1970 entrance examination. Service treatment records (STRs) lack any complaints, diagnosis, or treatment for tinnitus. The Veteran's military occupation specialty during service was Indirect Fire Crewman. At separation, the Veteran was clinically evaluated as normal. See August 1973 separation examination. Post-separation in 2016, over four decades after service, the Veteran reported occasional ringing in the right ear. See September 2016 VA treatment records. During a November 2016 VA examination, the Veteran reported recurrent tinnitus that was noticed "approximately 10 years ago." See November 2016 VA examination. Specific circumstance of onset was not reported. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that there was no report or complaint of tinnitus within the Veteran's STRs. There was no objective evidence of acoustic trauma given normal hearing at discharge and there was no significant change for the worse between enlistment and discharge. The examiner reasoned that onset was noted to be approximately 30 years after separation. Thus, it is less likely than not that tinnitus is related to military noise exposure. In September 2020, during an audiology appointment, the Veteran denied experiencing tinnitus. See September 2020 VA treatment records. During the February 2021 hearing, the Veteran testified that he remembers his ears ringing during service. See February 2021 hearing transcript. He reported that his "ears were always ringing after fire drills." He stated that his ears continued to ring after discharge. Regarding noise exposure during service, the Veteran stated that he was a mortar gunner which required loading the mortars into the tube and being next to it when it was fired. Following the Board's July 2021 remand, the Veteran was afforded another VA examination in September 2021. During the examination, the Veteran did not report recurrent tinnitus. See September 2021 VA examination. Rather, he denied recent or recurrent tinnitus. Initially, the Board concedes in-service noise exposure based on the Veteran's military occupational specialty and testimony regarding in-service noise exposure. The Board finds, however, that service connection still must be denied because the Veteran does not currently have tinnitus. The Board recognizes that tinnitus symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board also recognizes that the current disability requirement can be satisfied if a claimant has a disability at the time the claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, the Board does not find this is a situation in which the Veteran had tinnitus at one point during the pendency of the claim and then it resolved. Rather, the Board finds the Veteran's self-diagnosis of tinnitus has been vastly inconsistent throughout the pendency of this claim. Sometimes the Veteran has reported tinnitus in service and continuously since service. That his ears were ringing after "fire drills" and continued to ring after discharge. Other times, the Veteran denied tinnitus in service and indicated no tinnitus until 30 years after service indicating tinnitus first started on or around 2006. Most recently, the Veteran denied any recent or recurrent tinnitus. In light of these inconsistencies, the Board finds the Veteran's lay reports to be unreliable and not credible. The Board, as the fact-finder, is required to evaluate the credibility of evidence. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). As outlined above, the Veteran's statements regarding tinnitus symptoms are inconsistent. Even assuming for the sake of argument that the Veteran had tinnitus during the course of his claim based on the 2016 evidence of record, the Board finds that service connection is still not warranted because there is no evidence of chronicity or competent and credible evidence relating this condition to service. The Board finds that the Veteran is not entitled to service connection for tinnitus on a presumptive basis. His STRs are negative for any reference to complaints, treatment, or diagnoses of tinnitus. Thus, there is no evidence in his service treatment records suggesting that chronic tinnitus was shown as such in service. Nor is there any evidence that tinnitus manifested to a compensable degree within one year of service. The first reference to tinnitus in treatment records occurred in September 2016, a month after filing a claim for benefits. The Veteran's report of tinnitus during this appointment occurred multiple decades after separation from service and decades outside the presumptive period. While the Veteran reported tinnitus began 10 years prior to the September 2016 VA examination, this still remains decades outside of separation and beyond the presumptive period. Furthermore, to the extent the Veteran contends that he has had continuity of tinnitus symptomatology since service, the Board rejects this contention and finds the evidence of chronicity not credible. Again, at separation, the Veteran was clinically evaluated as normal and reported he was "in good health, no change since last physical examination." While the Veteran now states he experienced ringing in his ears during service that was present at separation and continued thereafter, the fact that he did not report this symptom at separation undermines the claim of continuity of symptomatology since service. Additionally, of great significance, is the Veteran's own inconsistent reports of experiencing tinnitus during the pendency of this claim. As mentioned above, the Veteran reported experiencing tinnitus and then later declined experiencing tinnitus. Moreover, when the Veteran reported tinnitus during the 2016 VA examination, by his own admission, onset was noted to be 10 years prior to the examination. While the Veteran later testified that onset was during service that has continued since separation, the Board finds more probative the statements made during the 2016 VA examination regarding onset. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (holding lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value, and statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding while VA cannot ignore a veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). Based on the totality of the record, the Veteran's statements regarding tinnitus, onset thereof, and persistence of symptoms are not credible due to the many inconsistencies. While the Board acknowledges cases like Fountain v. McDonald, 27 Vet. App. 258, in which the United States Court of Appeals for Veterans Claims (Court) held that the absence of in-service and post-service complaints does not necessarily render the Veteran not credible when claiming continuity of symptomatology, in this case the issue is not one of competency, but rather the Veteran's credibility. Here, the Board relies on the Veteran's report of good health and normal clinical evaluation at separation, coupled with the first report of tinnitus in 2016, conflicting statements regarding onset, inconsistent reports of experiencing symptoms, and the failure to file a claim in deeming the Veteran not credible as to statements of continuity of symptomatology. For the above reasons, continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. Service connection for tinnitus may still be granted on a direct basis. The preponderance of the evidence is against finding that a medical nexus exists between the Veteran's tinnitus and an in-service injury, event, or disease. As previously mentioned, in-service noise exposure has been conceded. Thus, the remaining question is whether the Veteran's contended tinnitus is related to service. To this point, the Board finds highly probative the September 2016 VA examiner's opinion. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. Moreover, it was accompanied by a clear rationale, and no other competent evidence of record refutes that opinion. While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, the Veteran is not competent to provide a nexus opinion regarding this issue. Jandreau, 492 F.3d 1377. Consequently, the Board gives more probative weight to the September 2016 VA examiner's opinion. For these reasons, the Board finds the preponderance of the evidence is against an award of service connection for tinnitus. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.