Citation Nr: 21009159 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-06 441 DATE: February 19, 2021 ORDER Service connection for tinnitus is denied. FINDING OF FACT Tinnitus was not manifest in service, within one year of separation from service, and is not otherwise related to service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to December 1964. In December 2020, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ identified the issues on appeal, clarified the concept of service connection claims, identified potential evidentiary defects, clarified the type of evidence that would support the Veteran’s claim, inquired as to the existence of potential outstanding records, and held the record open for an additional 60 days to allow for submission of additional evidence. The actions of the VLJ comply with 38 C.F.R. § 3.103. 1. Service connection for tinnitus. The Veteran seeks service connection for tinnitus. He primarily contends that tinnitus was caused by listening to radio transmissions through headphones during service, and to exposure to loud machines and typewriters. 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 (wartime), 1131 (peacetime). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Tinnitus is considered an organic disease of the nervous system. For certain chronic diseases, including organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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 distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). After reviewing the evidence, the Board concludes the preponderance of the evidence is against finding that tinnitus is related to his service. There is current disability as noted in the June 2015 private disability benefits questionnaire (DBQ) and October 2015 VA audiological examination. The Veteran also testified before the undersigned VLJ in December 2020 that he has a constant buzzing in his ears that began immediately after service. Service treatment records do not contain complaints or treatments relating to tinnitus. The Veteran denied any history of ear trouble in a September 1964 Report of Medical History. The September 1964 separation examination shows a normal clinical evaluation of the ears and ear drums. In June 2015 Veteran submitted an ear conditions disability benefits questionnaire showing a diagnosis of tinnitus with a reported onset of “1.5 years ago.” He was provided a VA audiological examination in October 2015. The Veteran reported is tinnitus began approximately two years prior on the left side and that it came on suddenly. The examiner determined the tinnitus was less likely than not caused by or a result of military noise exposure, explaining that the tinnitus began approximately two years ago, that military noise exposure had occurred 53 years ago, and that it is highly unlikely for tinnitus caused by military noise exposure to suddenly be present 53 years later. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The Board accepts the October 2015 examination and opinion as probative medical evidence. The examiner’s rationale was based primarily on the Veteran’s own reports of onset and the examiner reviewed the Veteran’s VA claims file, which includes service treatment records. The examination and opinion were based on review of the record and analysis of the Veteran’s history. The examiner’s opinion is also consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with tinnitus for 50 years after he separated from service. In addition, the record included two separate statements from the Veteran that his tinnitus had begun many years after service. The Veteran submitted a private medical opinion in December 2020 which stated that the Veteran likely has tinnitus which may be related to a service-related condition. See December 2020 Nexus Letter. It is well established that medical opinions which are speculative or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). The December 2020 opinion from the Veteran’s doctor is speculative in nature and is of little probative weight. The Board has considered the Veteran’s lay statements in support of his claim, including his testimony at the December 2020 Board hearing. Review of these statements shows the Veteran does not generally contend that he had tinnitus during service. Rather, he asserts that he first noticed tinnitus soon after separation, that the tinnitus was initially intermittent, and had become permanent by the time he filed his claim for service connection in 2015. See, e.g., December 2020 Hearing Transcript at page 8. He attributes his tinnitus to exposure to in-service exposure to high pitched radio noises and loud machinery. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report lay observable symptoms such as tinnitus and buzzing in his ears that began right after he separated from service. However, the Veteran’s statements regarding the onset of his tinnitus have been inconsistent. The private DBQ received in June 2015 shows the Veteran told his doctor that tinnitus had begun 1.5 years prior. At the October 2015 VA examination reported that his tinnitus had begun two years prior. These statements made to doctors and VA examiners are notably inconsistent with his subsequent lay statements in which he contends that he first noticed his tinnitus immediately after separating from service in 1964. His inconsistent statements regarding onset render any statement that tinnitus manifested right after service not credible and thus deserving of little probative weight. The Veteran’s other statements regarding onset assert that the tinnitus manifested a couple of years prior to his July 2014 examination, nearly fifty years after the Veteran’s separation from service. Although tinnitus is a chronic disease, the evidence is against a finding that the tinnitus manifested in service or within one year of separation. Service treatment records do not reflect any complaints of tinnitus, and the Veteran denied any ear trouble on his separation examination. As noted above, the Veteran’s statements as to onset of the tinnitus are inconsistent, and his assertion that tinnitus began soon after separation is not credible. The most credible, probative evidence shows the Veteran did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation from service. 38 C.F.R. § 3.303 (b). We conclude that the Veteran’s denial of pertinent symptoms at separation, and his initial reports to doctors that tinnitus had begun approximately two years before the October 2015 VA examination, are far more probative and credible than the lay evidence submitted in support of the claim for benefits. The Board must find that the Veteran’s statements regarding a nexus between the current tinnitus and service to be of minimal probative value. In sum, there is little competent or credible evidence relating the Veteran’s tinnitus to service. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for tinnitus is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.