Citation Nr: 21006590 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-11 008 DATE: February 4, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The most probative evidence is against finding that the Veteran’s tinnitus began during his service, within a year of his discharge, or is otherwise related or attributable to his service – including to his treatment in service for right ear pain, itching, and swelling and since service for left ear clogging and a later finding of fluid build-up in the right ear. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Air Force from October 1976 to September 1982. This appeal to the Board of Veterans’ Appeals (Board) is from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied this claim, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a March 2020 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s decision that had denied this claim and remanding it back to the Board for readjudication pursuant to agreement in the JMR. In September 2020, the Board, in turn, remanded this claim back to the Agency of Original Jurisdiction (AOJ), i.e., RO, for an addendum opinion concerning the origins of the Veteran’s tinnitus – especially in terms of whether related or attributable to his service and, in so doing, addressing evidence cited in the JMR. Entitlement to Service Connection for Tinnitus The Veteran contends that his tinnitus is related to his military service, including to complaints he had in service of earache, itching, pain, and swelling of his right ear as well his complaints since service of a clogged left ear and even later finding of fluid build-up in his right ear. But, ultimately, the Board finds that the most probative evidence is against relating his tinnitus to his service, so his claim again is being denied. The Veteran first underwent a VA examination for tinnitus in December 2012. He reported experiencing constant tinnitus with an onset of more than ten years earlier, so dating back to at least 2002 if not longer. He could not recall a specific incident that had precipitated the onset of his tinnitus. The examiner opined that the Veteran’s reported tinnitus was less likely than not related to his service due to a lack of complaints of tinnitus in service. But as since agreed to in the JMR, that medical opinion is inadequate since it did not consider the Veteran’s complaints in service – including in August 1981, of earache, itching, pain, and swelling of his right ear as well his complaints since service in September 1993 of a clogged left ear for days and subsequently in January 1995 of fluid build-up in his right ear. So, upon receiving this case back from the CAVC, the Board, in turn, remanded this claim back to the AOJ, i.e., RO, in September 2020 for an addendum opinion concerning the origins of the Veteran’s tinnitus – especially in terms of whether related or attributable to his service and, in so doing, addressing this evidence cited in the JMR. The Veteran consequently underwent another examination for his tinnitus later in September 2020. He reported experiencing this disease, but he could not recall exactly when it started. This additional examiner also concluded the Veteran’s tinnitus was less likely than not caused by his service and explained that, while the ear infections that he experienced in service may cause temporary tinnitus, the tinnitus resolves when the infection resolves. This examiner further pointed out there was no evidence the Veteran’s reported ear pain, itching, swelling, fluid buildup and clogged ears during his service or since are related to his currently diagnosed tinnitus. As specifically directed in the JMR, this more recent medical opinion addressed the evidence expressly cited in the JMR as potentially noteworthy and still disassociated the Veteran’s current tinnitus from his service. The Board consequently finds this most recent opinion highly probative since it duly considered his complaints in service, and since, and fully explained how they could not cause or account for his current tinnitus. This most recent opinion provided the required explanation, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no equally or certainly no more probative (competent and credible) medical nexus opinion refuting that VA examiner’s unfavorable conclusion of no correlation between the Veteran’s service and his later diagnosed tinnitus.   The Board has considered his lay statements and pleadings regarding the origin or cause of his tinnitus. He is certainly competent to report on his symptoms of this disease since tinnitus is the type of disease readily amenable to lay diagnosis. See, e.g., Charles v. Principi, 16 Vet. App 370, 374 (2002). However, even he concedes not knowing how long he has had this disease, so including in relation to when he was in the military many years ago, and he does not cite an specific incident that may have caused or even contributed to it. Moreover, both VA examiners concluded unfavorably by disassociating the tinnitus from his service. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). For these reasons and bases, the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in the Veteran’s favor, meaning this claim again must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.