Citation Nr: 21030604 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-46 759 DATE: May 19, 2021 ORDER The claim of entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran has not been shown to have tinnitus that manifested in service or within one year thereafter or that is otherwise etiologically causally or etiologically related to his military service CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 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 in the United States Army from March 1971 to December 1972. In December 2019, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for tinnitus. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, which is considered an organic disease of the nervous system, 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, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he developed tinnitus as a result of his military duties as a chaparral crewman. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Consequently, the Board finds the Veteran's lay testimony is sufficient to establish a current disability of tinnitus for the purpose of service connection. However, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of tinnitus. He was afforded a VA examination in March 2011. The Veteran reported military noise exposure from tanks and chaparral fire without hearing protection. He also had post-service noise exposure as a machinist for six years. The Veteran reported recreational noise exposure from car racing, target/skeet shooting, and motorcycles. He stated that his tinnitus began 5 to 8 years prior. In December 2015, the Veteran reported that his tinnitus was related to exposure to acoustic trauma from the firing of missile rockets and that he was in close proximity to the rockets without hearing protection. He stated that the March 2011 VA examiner misinterpreted his statement and that he actually experienced tinnitus during service with worsening symptoms 5 to 8 years prior. The Veteran underwent another VA examination in December 2019. He stated that his tinnitus started during service and worsened within the last 5 to 8 years. The examiner opined that his tinnitus was less likely than not due to military noise exposure. The examiner noted that at the Veteran's overall reliability of reporting was fair to poor. During the March 2011 examination, the Veteran reported a significant amount of post-service noise exposure, but denied such exposure when asked today, especially when asked about his recreational noise exposure. He reported that he only fishes and that he did not have any recreational noise exposure. The examiner explained that based on his separation examination showing normal hearing with no significant thresholds, the lack of complaints for any ear problems during service, as well as his post-service occupational and recreational noise exposure, his tinnitus was less likely due to military noise exposure. Upon consideration of the evidence above, the Board finds that the preponderance of the evidence is against service connection for tinnitus. The earliest evidence of tinnitus is in February 2011 when he filed his claim, which is more than 35 years after his separation from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Moreover, the Veteran has not submitted a medical opinion indicating that his tinnitus is related to in-service noise exposure. Significantly, the December 2019 VA examiner found that his tinnitus was not related to his military noise exposure. The Board affords significant probative value to the VA medical opinion as it was based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also, there is no medical opinion of record to contradict the VA examiner's opinion. Additionally, the record does not reflect that tinnitus had its onset in service or within one year of separation from active duty. The pertinent regulations require that manifestations are "noted" in the service records and that is not the case in this instance. Therefore, while currently diagnosed tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of tinnitus were shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, the medical evidence does not show that the Veteran had tinnitus that manifested within one year of his military service. As discussed above, there was no documentation of tinnitus for many decades thereafter. The Board does acknowledge the Veteran's statements that his tinnitus began in service. Although lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to report the presence of observable symptoms, such as ringing in his ears. 38 C.F.R. § 3.159 (a)(2) (2018); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to identify tinnitus). Therefore, his lay reports may be sufficient to prove his tinnitus claim if they are credible and consistent with the other evidence of record. However, his allegations are inconsistent with the contemporaneous record. There is no evidence of any complaints, treatment, or diagnosis in service, and the medical evidence does not show complaints of tinnitus until decades after service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that the Veteran lacks credibility in his assertions due to inconsistent reporting. At the March 2011 VA examination, the Veteran reported significant post-service occupational and recreational noise exposure. During the December 2019 VA examination, the Veteran expressly denied post-service occupational and recreational noise exposure. Accordingly, the Board finds the Veteran's statements regarding in-service incurrence to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords limited probative weight to such contentions. As such, the Board finds that the Veteran's reported history regarding the onset of his tinnitus is not reliable or credible. The Board has also considered the Veteran's own lay statements that his current tinnitus is related to his military service. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case, the etiology of tinnitus, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the December 2019 VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history. (Continued on the next page) Based on the foregoing, the weight of the competent, credible, and probative evidence does not show that the Veteran has tinnitus that manifested in service or within one year thereafter or that are otherwise causally related thereto. Therefore, the Board finds that the preponderance of the evidence weighs against the claim and that service connection is not warranted for tinnitus. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.