Citation Nr: 21026131 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-27 076 DATE: April 29, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran’s tinnitus began during active service or is otherwise related to his in-service instance of tinnitus or in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 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 February 1972 to August 1981. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board previously remanded this matter in October 2018. Tinnitus Service connection generally will be awarded when a veteran has a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link (“nexus”) between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309, including tinnitus as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1131, 1138 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for tinnitus (as an organic disease of the nervous system) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Veteran asserts that his current tinnitus is due to his in-service noise exposure. For the following reasons, the Board finds that service connection is not established. When the Veteran first reported tinnitus to his VA provider, he stated that the issue began approximately three years prior to his visit. See June 2013 VA Primary Care Note. Additionally, during his February 2014 VA examination, the Veteran reported that his tinnitus began approximately five years prior. See February 2014 VA C&P Examination. The Board acknowledges that statements made for the purpose of medical diagnosis are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 342, 356 (1992). Furthermore, the Veteran’s statements are sufficient to establish the presence of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s service treatment records indicate an instance of acute tinnitus. See June 1979 Service Treatment Record. However, the following year, the Veteran’s ears were noted to be intact and have good light reflex. See January 1980 Service Treatment Record. The Veteran did not again report instances of tinnitus during his active duty service. During multiple visits with his VA provider, the Veteran’s primary care provider found that his tinnitus was “likely related to hearing loss,” a condition for which the Veteran has not been awarded service connection. See June 2013 VA Primary Care Note; December 2013 VA Primary Care Note; June 2014 VA Primary Care Note. After the Board issued its October 2018 remand, an opinion was obtained as to the etiology of the Veteran’s current tinnitus. The clinician found that the Veteran’s tinnitus was less likely than not due to his in-service noise exposure because the current tinnitus had its onset in approximately 2009, which is about 30 years after the Veteran’s instance of in-service tinnitus and about 28 years after his discharge. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the June 2019 medical opinion of record constitutes probative evidence weighing against a link between the Veteran’s tinnitus and in-service noise exposure, as the opinion represents the conclusion of a medical professional specializing in hearing conditions, is based on the Veteran’s medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. The Veteran’s lay opinion that his tinnitus is linked to in-service noise exposure is not competent evidence, as such a determination cannot be made based on lay observation due to the lapse in time between the noise exposure and later onset of tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). More weight is accorded to the June 2019 opinion, which was rendered by a medical professional and support by a clear rationale. The Veteran has not submitted competent medical evidence which contradicts the conclusions of the June 2019 clinician. In sum, the criteria for service connection for tinnitus on a direct basis are not satisfied. See Holton, 557 F.3d at 1366. The Veteran’s tinnitus was noted in service in June 1979; however, the Veteran’s service treatment records and post-service medical records do not indicate a continuity of symptoms after service or chronicity of his condition. As noted above, the Veteran reported to his primary care provider in June 2013 that his tinnitus began approximately three years prior and to the February 2014 examiner that his tinnitus began around 2009. Thus, service connection for tinnitus as a chronic disease may not be established based on chronicity in service or a continuity of symptoms after service, or on a presumptive basis for tinnitus that manifests to a compensable degree within one year of separation. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a); Walker, 708 F.3d at 1338. Because the preponderance of the evidence weighs against finding a nexus between his current tinnitus and his in-service episode of tinnitus and noise exposure, service connection must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.