Citation Nr: A21019272 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 211020-192773 DATE: December 3, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran does not have tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to July 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 2021 issued by the Department of Veterans Affairs (VA) Regional Office (RO) under the Appeals Modernization Act (AMA). Because the Veteran selected the direct review docket. See October 2021 VA Form 10182. In cases appealed on the direct review docket, the Board's decision is based on the evidence of record at the time of the rating decision on appeal. See 38 C.F.R. § 20.202(b)(1). Service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may 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). The RO previously found that the Veteran has been exposed to noise during his active-duty service. See September 2021 Rating Decision at 2-3 (basing conclusion on military occupational specialty (MOS) of field artillery surveyor). Under the AMA, the Board is bound by "[any] finding favorable to the claimant... unless clear and convincing evidence is shown to the contrary to rebut such favorable finding." 38 U.S.C. § 5104A. The Board has not found evidence in the record to rebut this finding and therefore concludes that the second Shedden factor has been met. However, the Veteran has previously undergone a VA examination addressing this issue. During that examination, the Veteran denied experiencing recurrent tinnitus. See September 2021 VA Examination Report at 8 (answering examiner's answer "no" to question "does the Veteran report recurrent tinnitus?"); see also id. at 10 (noting in remarks that "[the] Veteran denies recurrent tinnitus") (emphasis added). The Veteran has provided no explanation or argument to clarify this point; in other words, why he would assert entitlement to service connection for a condition he later asserts he does not have. See March 2020 VA Form 21-526EZ at 2; cf. September 2021 VA Examination Report at 10, supra; see also October 2021 VA Form 10182 (providing argument addressing only the Veteran's history of active-duty noise exposure). The Veteran's medical treatment records support the inference that he has bilateral hearing loss, but do not otherwise discuss tinnitus. See March 2020 Medical Treatment Records (providing contemporaneous audiometric results); see also July 2021 Medical Treatment Records at 36 (providing July 2019 treatment note observing hearing loss, among other conditions, but making no mention of tinnitus). The Board does not find the absence of corroborating medical evidence dispositive in this case because tinnitus is a condition perceptible to lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (providing that "[whether] lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). However, because the Veteran's own statements during the September 2021 VA examination contradict his prior assertion of entitlement to service connection for recurrent tinnitus, and because none of the other evidence of record supports the existence of such a condition, the Board finds that the first Shedden factor has not been met. "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board therefore concludes that service connection for this condition is not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.