Citation Nr: 21021231 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-12 901 DATE: April 12, 2021 ORDER Service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus 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 Tinnitus was not incurred or aggravated in service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from January 1982 to June 1984, the United States Army from June 1986 to May 1992, and again in the United States Navy from June 1997 to September 1997. This issue comes before the Board of Veterans Appeals (Board) on appeal from a July 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In September 2020, the Board remanded this case for additional development. In February 2021, the Board notified the Veteran that the VLJ who conducted the March 2019 hearing was no longer employed at the Board. He was provided the option of requesting a new hearing before a current Board member but was advised that if he did not respond within 30 days the Board would assume he did not want another hearing. As of this date, the Veteran has not responded. As such, the Board will proceed accordingly. 1. Entitlement to service connection for tinnitus Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as organic diseases of the nervous system are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). For the showing of a chronic disease in service, there must be a combination of manifestations enough to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has a current diagnosis of tinnitus. This is supported by the Veteran’s lay statements as well as VA examinations from February 2013 and October 2020. The Veteran’s service personnel records also show he served as an air crewman and military policeman while in service. Accordingly, his exposure to noise trauma in service is conceded and the issue at hand is whether the current tinnitus had its onset during service, had onset within one year of service separation, was noted to be chronic during service, was noted during service and existed since that time, or is otherwise related to active service. At the March 2019 Board hearing, the Veteran testified that he had high-pitched ringing and humming going through his ear which he contended began when he was flying for the US Navy. He described having to do pre-flight work on the outside of the airplanes in very noisy conditions with inadequate hearing protection. See March 2019 hearing transcript. Service treatment records are silent for any complaints, findings, treatment, or diagnoses related to hearing loss or tinnitus. Notably, in the May 1992 separation documents, a December 1995 Flight Physical, and 1997 Army Reserve Enlistment Reports of Medical History, the Veteran denied hearing loss and ear trouble. In a report accompanying a February 2013 VA Compensation and Pension (C&P) Examination, the examiner opined that the Veteran’s tinnitus was at least as likely as not associated with hearing loss. The examiner did not opine as to whether the Veteran’s tinnitus was related to his in-service noise exposure, but instead noted the lack of reports of tinnitus through the claims file. In August 2014, the Veteran’s private physician provide a statement in which he opined that the Veteran’s tinnitus was more than likely due to flying in the military. The Board remanded the issue in a September 2020 decision, noting that the February 2013 C&P Examination did not adequately address whether the Veteran’s tinnitus was related to noise exposure in service. Instead, it merely acknowledged that tinnitus was a known symptom of hearing loss and that there was no report of tinnitus in the file. In compliance with the remand, a new C&P Examination was conducted in October 2020. There, the examiner opined that it was less likely than not that the Veteran’s tinnitus was related to his in-service noise exposure. The examiner noted that the Veteran did not have hearing loss upon entering or exiting the military, and therefore there was no in-service hearing pathology to which the tinnitus could be medically linked. Additionally, there was no complaint of tinnitus during service or within one year of separation. The examiner lastly noted the Veteran had post-service noise exposure through his work in the Sheriff’s office, which was not addressed by the August 2014 private examiner. After reviewing the evidence, the Board finds that the Veteran’s tinnitus did not become manifest within one year of his leaving active duty in September 1997 to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. There is also no evidence of tinnitus during service, so the chronic provisions and the continuity of symptomatology are not established. Indeed, despite his report of having hearing loss and tinnitus since service, no such complaints or findings were noted in service or for years thereafter. The Veteran is competent to report symptoms of tinnitus, and the Board acknowledges the Veteran has stated his tinnitus began and has existed since service. See, e.g., March 2019 Hearing Transcript and February 2013 VA Examination. However, the Board finds the Veteran’s assertions not credible. In particular, no hearing loss or tinnitus was noted at the Veteran’s separation from service. Instead, at a May 1992 examination the Veteran denied ear trouble and stated, “I am in good health and taking no medications.” Again, in January 1994 and December 1995, the Veteran noted no hearing issues or tinnitus and instead declared his health to be “outstanding” and that he “feels good”. In an April 1997 examination conducted for his entrance into the Army reserves, the Veteran denied hearing troubles. No mention was made of tinnitus for a number of years following service. In a March 2012 private treatment record, the Veteran denied tinnitus, hearing loss, or vertigo. While the Veteran declared in a March 2013 VA Examination that he had tinnitus since service, there are several private treatment reports from February and March 2013 in which no hearing or hearing related troubles were noted. This is notable because these same reports later reflected hearing loss but not tinnitus in August 2013 and then finally noted tinnitus in September 2013. Importantly, the Veteran submitted his claim for tinnitus in May 2012, and requested a nexus opinion from his private physician at the September 2013 visit. A VA record from November 2016 subsequently notes “no trauma, tinnitus, or hearing loss.” Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). While evidence is presumed to be credible, exceptions to this presumption occur when the evidence is inherently incredible or beyond the competence of the person asserting it. Id. Here, the inconsistency in the Veteran’s testimony about having tinnitus continuously since service and the record make his assertions inherently incredible and negates their probative value. Therefore, the most probative evidence of record shows no continuity of symptomatology as there was no tinnitus noted at separation, or for fifteen years thereafter, and reports thereafter were inconsistent. Finally, the evidence of record does not demonstrate a nexus between service and the Veteran’s tinnitus. The Board finds the October 2020 C&P Examination to be the most probative evidence against the claim for service connection. The examiner’s opinion is based a review of the medical history and is supported by sound medical rationale. Conversely, the opinion of the private physician dated August 2014 carries less probative value as it a conclusory opinion and fails to provide any reasons and bases for its conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”). (Continued on the next page)   The most probative evidence of record does not show a nexus between the Veteran’s service, to include noise exposure therein, and his current tinnitus. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt rule. However, where preponderance of the evidence is against a claim, the benefit of the doubt rule does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Stuedemann, Angela L. 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.