Citation Nr: 21028431 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-19 358 DATE: May 11, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED The claim of entitlement to service connection for a left ankle disorder is remanded. FINDING OF FACT A preponderance of the evidence indicates that the Veteran did not incur tinnitus during service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1989 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. In May 2020, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred tinnitus during service as the result of exposure to loud noises. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as tinnitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). 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 granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of service treatment records (STRs), service personnel records (SPRs), VA treatment records, lay assertions from the Veteran, and VA examination reports dated in January 2016 and August 2020. The record documents that the Veteran has tinnitus. This is demonstrated most recently in the August 2020 VA report. The record also establishes that he was exposed to noise during service. As noted in the Board's remand, the Veteran served in the U.S. Navy as an interior communications electrician. A SPR indicates that among the positions he held during service were "firefighting team member" and "advanced damaged control watch station tasks[.]" Moreover, the Veteran's lay statements attesting to experiencing loud noises during service are probative. He is competent to report observable matters such as experiencing loud noises. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the record indicates that the Veteran did not incur tinnitus during service. During the Board hearing, the Veteran asserted that he remembers experiencing ringing in his ears during service and has had similar recurrent symptoms since then. However, the objective evidence of record does not indicate onset during or soon after service. The STRs are negative for a hearing problem. The April 1993 separation reports of medical examination and history are negative for any type of hearing disorder to include either tinnitus or hearing loss. The April 1993 separation audiogram indicates normal hearing just as the April 1989 enlistment report did. There is no medical evidence indicating tinnitus within the first year of discharge from active duty in 1993. 38 C.F.R. § 3.309 (a). The Veteran filed a claim of entitlement to service connection for an unrelated disorder in the mid-1990s but did not indicate in his interaction with VA at that time that he had tinnitus. The earliest lay evidence of record of tinnitus is found in a lay assertion from him in 2015 while the earliest medical evidence of record of tinnitus is found in the January 2016 VA report, dated over 20 years following service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). In short, the objective record does not document the existence of chronic tinnitus during service or for many years following service. Notwithstanding the Veteran's assertions, the preponderance of the evidence indicates that, for over 20 years following service, the Veteran did not have the characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, supra. Thus, the objective evidence of record addressing the question of tinnitus following service indicates that tinnitus did not begin during service or soon after service. Moreover, the only medical opinions of record addressing the issue of medical nexus counter the claim. The VA audiologist who addressed this claim conducted audiology examinations in January 2016 and August 2020. The January 2016 report was incomplete, so the Board requested an addendum opinion in its remand. In the August 2020 addendum report and opinion, the audiologist indicated that it was unlikely that tinnitus "was caused by or the result of military noise exposure." In support, the examiner noted the absence of objective evidence showing any type of hearing problem during service to include hearing loss. The supporting rationale of the opinion is persuasive that tinnitus is usually associated with hearing loss, and that the Veteran not only did not have hearing loss during service, as is demonstrated by the separation examination, he still does not have a hearing loss disability now over 20 years after service. This was demonstrated most recently in the August 2020 examination, during which the examiner found normal hearing under VA guidelines. See 38 C.F.R. § 3.385. The Board finds the opinion of probative value because it is based on an examination of the Veteran, an interview of the Veteran, a review of the claims file, and is explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). And it is more persuasive than the Veteran's statements. As indicated earlier, the Veteran is competent to describe observable symptomatology. See Jandreau, supra. However, he is not competent to determine issues such as diagnosis and etiology. The development of a chronic neurological disorder is an internal pathology beyond a layperson's capacity to observe, sense, or feel. Its development is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the August 2020 medical opinion is more credible than the Veteran's lay assertions. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). This is particularly the case given the absence of lay or medical evidence of tinnitus prior to 2015. His lay assertions are therefore outweighed by the August 2020 VA opinion. Based on the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for tinnitus. As such, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Another remand is warranted for an addendum medical opinion addressing the claim of entitlement to service connection for a left ankle disorder. The Veteran underwent medical examination into this claim in August 2020. The report and opinion provided are incomplete with regard to the issue of direct service connection. As indicated in the Board remand, the evidence supports the Veteran's assertion that he injured his left ankle during service as the result of such accidents as falling down ladders on naval vessels. But the August 2020 report is based on the assumption that the Veteran did not injure his ankle during service because the STRs are negative for evidence of such an injury. The matter is REMANDED for the following action: Return the case to the examiner who conducted the August 2020 VA examination of the left ankle (or to a suitable substitute) for issuance of an addendum medical opinion. After reviewing the claims file, the examiner should again answer the following question: Is it at least as likely as not (i.e., probability of 50 percent or more) that a left ankle disorder had its onset during service, or is related to a disease, event, or injury during service? In answering the question, accept as true that the Veteran injured his left ankle during service, even though the STRs do not note such an injury during service, and even though the April 1993 separation reports of medical examination and history do not indicate a left ankle problem either during service or at the time of separation from service. If you again find that a left ankle disorder is not related to service, explain why the diagnosed left ankle strain would not relate to an injury during service that ended in 1993. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee, 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.