Citation Nr: 22016834 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-34 449 DATE: March 23, 2022 ORDER Entitlement to 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 The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 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 in the Army National Guard from November 1990 to July 1991. He also had a period of active duty for training (ACDUTRA) from September 1978 to March 1979, with additional periods of inactive duty for training (INACDUTRA) from 1978 to 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In December 2019 and December 2021, the Board remanded the claim for further development. There has been substantial compliance with the December 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for tinnitus is denied. The Veteran contends that in-service acoustic trauma and lack of proper hearing protection caused his tinnitus. See October 2021 Brief. The August 2016 VA examination reflects a current diagnosis of recurrent tinnitus. A May 1991 in-service audiogram noted that the Veteran was routinely exposed to hazardous noise. Thus, the current disability and in-service noise exposure elements have been met. The question for the Board is whether the Veteran's tinnitus began during service or is at least as likely as not related to his in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran's service treatment records during ACDUTRA service do not reveal any complaints for tinnitus. His October 1983, September 1987, and May 1991 examinations during INACDUTRA service do not show any complaints for tinnitus. Tinnitus was seldomly documented in medical records beginning in 1999. A May 1999 VA mental health record shows complaints of hearing loss, tinnitus, and vertigo. A July 1999 VA audiology record noted a complaint of hearing difficulty; otoscopy revealed deposits of cerumen in the ears, and the assessment was normal hearing. A September 1999 VA nursing inpatient admission assessment noted no problems with hearing. An April and a May 2002 VA nursing inpatient admission assessments noted no problems with hearing. A May 2003 VA nursing inpatient admission assessment shows no problems with hearing. In an October 2009 VA audiology exam report, the Veteran's hearing was normal, but he reported intermittent bilateral tinnitus. The Veteran was afforded a VA examination in August 2016. The Veteran reported constant bilateral tinnitus over the past three years. The examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that when the 1991 exam is compared to the exams in 1987, 1983, and 1978, there was no clinically significant increase in thresholds; he added that a 2009 VA exam indicated no clinically significant increase in thresholds compared to the 1983 and 1987 exams. The examiner also noted that according to a 2006 landmark study by Institute of Medicine (IOM), "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner stated that while the Veteran's reports of military related noise exposure and reports of any continuation of difficulties with tinnitus since the time in service would be considered in formulating an opinion regarding the tinnitus, there was lack of objective evidence of permanent noise-induced damage to hearing over time in service based on the frequency-specific tests during service. He concluded that given these factors, the Veteran's current tinnitus was less likely as not due to noise exposure during active duty military service. At the July 2019 Board hearing, the Veteran reported he began experiencing tinnitus during active service. The Veteran underwent a VA contract examination in May 2021, and an addendum was obtained in June 2021. The Veteran did not report any recurrent tinnitus at the May 2021 exam. In the June 2021 addendum, the examiner noted that when the Veteran was asked if he experienced tinnitus or sounds in ears, the Veteran reported he did not experience them. The examiner stated the Veteran denied previous or current tinnitus despite he was asked twice. Given the August 2016 VA examiner's reliance on the 2006 IOM report and what appeared to be a rejection of the Veteran's lay statements regarding continuity of symptomatology, the Board remanded the appeal for the purpose of obtaining an addendum opinion. Pursuant to the December 2021 Board remand, an addendum opinion was obtained in January 2022. The examiner opined that the Veteran's tinnitus was less likely than not incurred in or caused by noise exposure in service. The examiner noted that the Veteran reported at the August 2016 exam that constant bilateral tinnitus had an onset 3 years ago. The examiner also stated that while the December 2021 Board remand noted the downfalls of the 2006 IOM study, the researchers who found the IOM study incorrect also stated in their own studies that "humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes." The examiner further noted that any noise exposure through the Veteran's life, including traffic noise, smoke alarms, and etc., should be considered in addition to any military noise exposure. She stated that there can also be genetic predispositions as well as medical reasons for tinnitus other than noise exposure. She noted that the Veteran has a complex medical history, which, given the very delayed onset of tinnitus symptoms over 20 years post separation from military service, needs to be taken into consideration for onset of tinnitus rather than military noise exposure. The examiner concluded that given the 20+ year delayed onset of symptoms, the Veteran's reported tinnitus is less likely than not related to hazardous noise in the military. In a March 2022 Appellate Brief, the Veteran's representative argued that noise doses associated with hearing loss are likely to be associated with tinnitus. The representative also referred to medical articles that appear to discuss delayed onset of tinnitus. After review of the evidentiary record, the Board finds that service connection for tinnitus is not warranted. Initially, entitlement to service connection for tinnitus is not presumed based on the circumstances of this case. Tinnitus was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The medical records during ACDUTRA and INACDUTRA service do not reveal any complaints for tinnitus. The first documented complaint of tinnitus was in 1999, which was many years outside of service and the one-year presumptive period. The Veteran's reports of its onset are not credible as they are inconsistent with his treatment records as noted above, and with his own statements; while he reported at the August 2016 exam that his tinnitus onset three years ago, he reported at the Board hearing that it had onset during active service. Given the foregoing, the chronicity and continuity of symptomology framework does not establish a nexus between the current disability and active military service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309. The Board further concludes the evidence persuasively weighs against finding that the Veteran's tinnitus began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records do not reflect complaints or diagnoses of tinnitus in service. The January 2022 examiner explained that any noise exposure through the Veteran's life, including traffic noise, smoke alarms, and etc., should be considered in addition to his military noise exposure, and that there can be genetic predispositions as well as medical reasons for tinnitus other than noise exposure. She stated that given the Veteran's complex medial history and very delayed onset of tinnitus symptoms over 20 years after separation from military service, the Veteran's tinnitus was less likely than not related to military noise exposure. The January 2022 examiner did not rely on the 2006 IOM study in rendering her negative nexus opinion, but briefly noted and discussed the limitations of the study. The examiner's cumulative nexus opinion is probative as it was comprehensive, based on a review of the Veteran's clinical record and lay statements, and was accompanied by a cogent rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the March 2022 Appellate Brief, the representative referred to some medical articles; however, the articles appear general in nature, and the representative did not provide any analysis as to how it applied to the specific facts of the Veteran's case. Further, while the representative argued that noise doses associated with hearing loss are likely to be associated with tinnitus, as discussed above, the Veteran's service treatment records do not reveal any objective evidence of permanent noise-induced damage to hearing in service. The Veteran believes his tinnitus is related to his active service, but he is not competent to provide a nexus opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. It is outside his competence as the record does not show that he has the medical expertise to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. (Continued on the next page) The Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, the doctrine is not applicable. Service connection for tinnitus is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.