Citation Nr: 21031412 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-41 257 DATE: May 21, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The competent evidence of record does not attribute the Veteran's tinnitus to military service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 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 November 1969 to October 1972. This case comes to the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an Agency of Original Jurisdiction (AOJ) rating decision dated in February 2016. The Veteran testified before the undersigned in June 2019. A copy of the transcript has been associated with the claims file. In February 2021, the Board remanded this issue to the AOJ for additional development after the United States Court of Appeals for Veterans Claims (CAVC or Court) vacated a September 2019 Board decision. The Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. See Stegall v. West, 11 Vet. App. (1998). 1. Entitlement to service connection for tinnitus Generally, to establish 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., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases - including an organic disease of the nervous system (interpreted to include tinnitus and sensorineural hearing loss) -to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, organic diseases of the nervous system (interpreted to include tinnitus and sensorineural hearing loss) are among the diseases listed in section 3.309(a). The Veteran has a confirmed diagnosis of tinnitus. See December 2015 VA examination report. He also has a qualifying in-service event and was exposed to traumatic noise in service. See, e.g., February 2016 rating decision granting service connection for left ear hearing loss. Thus, the question before the Board is whether the Veteran's tinnitus was incurred in service or if there is a medical nexus between the Veteran's service and his tinnitus. Unfortunately, as explained below, after reviewing the evidence of record, the Board concludes that service connection for tinnitus is not warranted. If a Veteran can demonstrate a chronic disease "shown in service," and there are no intercurrent causes, the manifestation of the chronic disease present at the time the Veteran seeks benefits establishes service connection for the disease. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d at 1336. Alternatively, when the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required. 38 C.F.R. § 3.303(b). As noted, Section 3.303(b) is constrained by Section 3.309(a), in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309. Walker, 708 F.3d at 1338. The Court has held that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Veteran's service treatment records (STRs) do not show any complaints of tinnitus. At an enlistment examination in November 1969, the Veteran had a normal clinical evaluation. Similarly, at a separation examination in October 1972, the Veteran's ears were normal. The Veteran was afforded a VA examination in May 2013. The Veteran did not report recurrent tinnitus. The Veteran had a VA examination in December 2015. He reported onset of bilateral tinnitus over the previous 5-10 years. The Veteran reported in-service noise exposure including riding in convoys, working in a helicopter unit, working as a manager for an officers' club with loud noise from music, and being around shooting in the jungle of Vietnam. He also reported post-service noise exposure as a police officer, with occupational noise from qualifying and training with weapons, an ambulance driver, factory work, occasional chainsaw use, and motorcycles. The examiner noted that the Veteran did not report tinnitus in May 2013. A negative nexus opinion was provided. The rationale was that there was no evidence to support a claim of delayed-onset tinnitus after an incident of noise exposure, and onset after significant noise exposure was immediate. The examiner communicated with a professor in a medical school's Department of Otolaryngology and contributing author of the book "Tinnitus: Theory and Management." There was no research evidence to support a claim of delayed-onset tinnitus. The AOJ obtained a supplemental opinion in July 2016. The examiner opined that it is less likely as not (less than 50/50 probability) that the Veteran's tinnitus was caused by or the result of military noise exposure. The examiner reviewed the previous VA examinations, and concluded that the tinnitus had its onset between 2005 and 2010, which was several decades after separation and not likely due to military acoustic trauma. The Veteran had a military occupational specialty (MOS) with a low probability of noise exposure, and a "clear nexus cannot be established" unless tinnitus were documented in the STRs or records from service. The examiner also cited an Institute of Medicine study that found that as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. Furthermore, tinnitus and hearing loss are independent disorders and one does not directly cause the other. Therefore, based on the Veteran's age and noise history, it was more likely that his tinnitus was due to factors other than military noise exposure. The Veteran testified at a Board hearing in June 2019. He indicated that he had intermittent ringing in his ears for several years. The Veteran testified that he did not remember having tinnitus while on active duty, and that he noticed it ten to fifteen years prior. He reported his in-service noise exposure included riding on a cargo truck, being assigned to a helicopter unit, and running the noncommissioned officers' club with loud music. The Veteran had another VA examination in December 2019. He reported the onset of tinnitus in 1972 "since separation from the military." No etiology opinion was provided. The AOJ obtained an addendum opinion in March 2021. The examiner reviewed the Veteran's reported in-service noise exposures, including being a passenger in a convoy, platoon sergeant in helicopter units, and manager for officers' club. The examiner noted that the Veteran reported a different onset of tinnitus in the December 2019 VA examination than he did in the May 2013 and December 2015 VA examinations. The examiner acknowledged that the Veteran was service connected for hearing loss based on military noise, but explained that tinnitus can be present without hearing loss and vice versa. Since the Veteran's STRs did not show a significant shift in hearing from entrance to separation, that indicated that noise exposure did not damage his auditory system. The Veteran also reported post-service noise exposure to VA examiners as a factory worker and to vehicles and chainsaws. Based on these factors, his tinnitus is less likely than not etiologically related to, caused by, or incurred in service, including noise exposure. After reviewing the evidence, the Board concludes that service connection for tinnitus is not warranted. First, the Board concludes that the Veteran's tinnitus was not incurred in service. In assessing the evidence, the Board affords the May 2013 VA examination significant weight. The Board finds that, when it is considered with the Veteran's June 2019 testimony, the preponderance of the evidence demonstrates that the Veteran's tinnitus was not incurred in service. The Veteran also reported in December 2015 that the ringing in his ears began 5-10 years prior. While the Veteran reported in December 2019 that his tinnitus had its onset in 1972, the March 2021 examiner explained that the Veteran's audiological test results from 1972 showed that the Veteran did not demonstrate damage from noise exposure in service. Given that there are three reports in the record from the Veteran that his tinnitus had its onset after service, and only one report of incurrence in service, the Board finds that the weight of the evidence is against a finding that the Veteran's tinnitus had its onset during service or within the presumptive period. Second, the Board concludes that the evidence does not establish a nexus between in-service noise exposure and the Veteran's tinnitus. While the Board previously found the July 2016 VA examination report inadequate, and therefore affords it little weight, the Board finds that the March 2021 opinion is adequate to decide the claim, especially when considered with the May 2013 and December 2015 VA examination reports. The March 2021 opinion receives significant weight because it is logical and considers the Veteran's reports of noise exposure and the fact that he is service-connected for hearing loss. The December 2015 VA examination report receives some, but not significant, weight because it considers the Veteran's reports of noise exposure and cites research from a professor, but it also mentions the Institute of Medicine study, which, in part, made the July 2016 examination inadequate. With a competent negative nexus opinion having significant weight, and a negative nexus opinion having some weight, the Board concludes that the preponderance of the evidence is against the Veteran's claim. The Board notes that there is no nexus opinion of record addressing tinnitus in favor of the Veteran's claim. Therefore, reasonable doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, Associate 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.