Citation Nr: 22017787 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-09 538 DATE: March 26, 2022 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran's tinnitus did not have its onset in service, was not manifested within one year of service discharge, and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1960 to October 1963. In October 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. In November 2019, the Board remanded the matter on appeal to schedule the Veteran for a VA examination for his tinnitus and bilateral hearing loss disability. In September 2020, the Board denied the service-connection claims for bilateral hearing loss disability and tinnitus. The Veteran appealed the Board's decision as to the tinnitus claim to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not challenge the portion of the Board's decision that denied entitlement to service connection for a bilateral hearing loss disability. In a July 2021 Joint Motion for Partial Remand (Joint Motion), the Veteran and the Secretary of VA (parties) agreed that the September 2020 decision should be vacated because the parties found the Board failed to provide an adequate statement of reasons or bases for its decision and its reliance on an inadequate VA medical opinion to deny the claim. In a July 2021 Order, the Court vacated the Board's September 2020 decision in part and remanded the matter on appeal to comply with the Joint Motion. In December 2021, the Board remanded the claim for further development; specifically, to afford the Veteran a VA examination and obtain an opinion regarding whether there is a nexus between the Veteran's tinnitus and service. The Board finds there has been substantial compliance with the Board's directives and now will consider the claim on its merits. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus had its onset in service during basic training and weapons training. During the November 2017 conversation with the VA audiologist, the Veteran stated that he had noise exposure from firing various weapons in basic training as well as being near the area where Howitzers and recoilless rifles were being fired in basic training. The Veteran reported that he also took part in yearly weapons qualifications on the range. The Veteran reported that he was involved in skeet shooting and was exposed to firing of missiles. Within the December 2017 Notice of Disagreement, the Veteran wrote that he first noticed his tinnitus while he was on active duty. He stated he was never issued any type of hearing protection while he qualified or shot various small arms. In the February 2018 VA Form 9, Appeal to the Board, the Veteran wrote that he told the VA audiologist on his phone interview that he first noticed his hearing loss and tinnitus while in service and because he has been out so long, it seems like forever. During his Board hearing, the Veteran stated that he did not start getting treatment for his hearing loss and tinnitus until three years prior. The Veteran also stated that he has a constant tone in his ears. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as tinnitus, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the claim for service connection for tinnitus. The reasons follow. As to evidence of a current disability, a December 2019 VA examination report shows that the Veteran was diagnosed with tinnitus. Thus, there is evidence of a current disability, and the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records do not show that the Veteran sustained a disease or injury to his ears during service related to tinnitus. For example, the Veteran was afforded auditory testing prior to his entrance in service in September 1960, as well as a separation examination in August 1963. The Veteran's hearing at entrance and separation were the same, although the Board is aware that an audiometer was not performed at either time. In the August 1963 Report of Medical History, the Veteran reported that his present health was good and reported a positive history of ever having or having then ear, nose, or throat trouble. The audiologist documented that his related to a deviated nasal septum, where the Veteran underwent submucosal resection (SMR) in May 1963. Additionally, in the September 1960 and August 1963 Reports of Medical Examination, the Veteran was assigned a 1 under the PULHES profile for hearing. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "H" reflects the condition of the "hearing and ears." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, the Veteran's hearing was determined to be at a high level of fitness. Regardless, the Board concedes the Veteran had in-service noise exposure, which is not the same as acoustic trauma. The Veteran's military occupational specialty was a chaplain assistant, which would have a low probability of hazardous noise. Thus, the facts establish that the second element of a service-connection claim is met to this extent only. As to evidence of a nexus between the current disability and service, the Board finds that the evidence persuasively weighs against a nexus. As noted above, in August 1963, while still in service, the Veteran completed the Report of Medical History. It shows that while he documented a positive history of having ear, nose, or throat problems, he specifically documented a positive history of a deviated nasal septum, among other medical problems. None of the explanations of the positive history the Veteran reported involved the Veteran's ears, to include ringing in the ears, but involved multiple other bodily systems. This would have been an opportunity for the Veteran to report tinnitus or a ringing in his ears, as he had the thought process to report other medical concerns he experienced before and during service. The positive histories documented in the August 1963 Report of Medical History that occurred during service are consistent with what is documented in the service treatment records. In other words, for positive symptoms that the Veteran claimed had occurred during service, there are corresponding service treatment records reflecting that treatment. For example, he reported a positive history of stomach, liver, or intestinal trouble. He explained that such report was when he had acute gastroenteritis in March 1963, and a service treatment record supports that fact. None of the positive histories involved tinnitus or ringing in the ears. Thus, at the time of service discharge, it had been three years since the alleged noise exposure during basic training, and the Board finds that had the Veteran been experiencing chronic ringing in the ears for years, he would have reported such fact in the August 1963 Report of Medical History, as it is clear from that document that the Veteran provided a detailed medical history of other positive symptoms he had experienced prior to service and during service. The Board finds the facts documented in the service treatment records to be very probative, as contemporaneous records are highly reliable and more probative than statements made decades after service discharge. Furthermore, the Board finds that the Veteran's report of the onset of tinnitus during service is not credible. During the November 2017 conversation that the Veteran had with the audiologist, the Veteran stated that he had no idea as to the approximate time frame of the onset. It was clear that the audiologist pressed the Veteran as to the onset of tinnitus, as the audiologist wrote, "He has no idea as to an approximate time frame of tinnitus onset. He was not able to even offer a guess." Then in statements and testimony, the Veteran stated that he noticed tinnitus during service. At the December 2019 VA examination, the Veteran reported that he noticed the tinnitus after basic training. At the January 2022 VA examination, the Veteran reported that he was unsure of the timeframe when he began experiencing tinnitus symptoms but said he was exposed to noise without hearing protection only during basic training. The Board finds the Veteran has made inconsistent statements as to the onset of tinnitus, which has damaged his credibility. Within the July 2021 Joint Motion, the parties wrote that in finding that the Veteran's statements of tinnitus in service were not credible, "the Board failed to discuss how [the Veteran] would have known clarification of his statements made to the November 2017 opinion provider was needed until after receiving notice of the December 2017 rating decision." The parties found that due to this finding and the failure to address the Veteran's statements within the notice of disagreement, the VA Form 9, and at the Board hearing, that the Board's reasons and bases for finding that the Veteran's statements were not credible were inadequate. Accordingly, the Board will address the concern regarding how the Veteran would have known clarification was needed when asked about when tinnitus had its onset. When someone is asked when he or she developed or experienced symptoms, the Board finds it reasonable to conclude that someone will respond honestly with a date or a time frame or state he or she cannot remember the onset date. For example, in the August 1963 Report of Medical History, the Veteran documented diseases, injuries, and symptoms and consistently included the date of such diseases, injuries, and symptoms. For example, he documented he had his tonsils extracted when he was "Age 5." He had a cyst removed from his right hand when he was 10 years old. He had deviated septum surgery performed when he was "Age 21." He fractured his third finger of the right hand in November 1961. He fractured his fifth finger of the left hand in August 1962. He experienced gastroenteritis in March 1963. At the February 2016 VA examination for his left hand, the Veteran reported sustaining the injury to his hand while playing football for physical training. These facts show that the Veteran has an understanding that when discussing a medical fact, he either documented or reported when such medical fact occurred, which included as recently as the February 2016 examination. When speaking with the audiologist for the November 2017 VA opinion, the Veteran was able to describe the various forms of noise exposure he experienced during service. He reported noise exposure from various weapons fire in basic training, as well as being near the area where Howitzers and recoilless rifles were being fired in basic training. He discussed taking part in yearly weapons qualifications on the range, being involved in skeet shooting, and being exposed to the firing of missiles. Thus, when asked about his noise exposure, the Veteran was able to discuss the noise exposure he experienced during service in detail. Therefore, when the Veteran was asked when tinnitus started and he was unable to state an approximate time frame even after the November 2017 audiologist pressed him as to the onset, the Board finds it reasonable to conclude that tinnitus did not start during service; otherwise, he would have reported that fact. The Veteran was claiming tinnitus was related to service, but was unable to state an approximate time frame of when tinnitus started, which the Board concludes was because tinnitus did not start during service. It does not make sense that the Veteran would report specific in-service noises he experienced that he believed had caused tinnitus but then not report tinnitus occurred during service if he had experienced tinnitus during that time period. The Board finds as fact that the Veteran did not experience tinnitus during service or he would have reported it when asked directly, as he has consistently done during service and while seeking benefits for his left hand. Thus, the Board does not find that the Veteran should have known that clarification of his statements was needed. He was asked a direct question in more than one way, and the Veteran answered honestly, which was that he could not provide an approximate time frame of when tinnitus started. The Board finds no reason to question what the Veteran reported to the November 2017 audiologist, as he was asked questions regarding noise exposure and the onset of symptoms, and he reported various forms of in-service noise exposure, denied post-service noise exposure, and was unable to state when tinnitus began. The inability to state that ringing of the ears occurred during service, while at the same time reporting all the various noises he was exposed to while in service, is evidence that tinnitus did not start during service, again, otherwise he would have reported that fact. It was only after the December 2017 rating decision, wherein the Veteran was informed, "As there was no evidence of this condition in service, and as you have a history of both military and post military noise exposure, with no timeframe of the onset of tinnitus, the audiologist was not able to determine the etiology of your tinnitus" that the Veteran then claimed that tinnitus began in service. To reiterate what was laid out above, the Veteran has changed from not being able to provide an approximate time frame of the onset of tinnitus (November 2017 conversation) to being able to provide an approximate time frame, which was during service (December 2017 notice of disagreement, February 2018 VA Form 9, and October 2019 testimony) to being unable to state the timeframe when he began experiencing tinnitus (January 2022 VA examination). For these reasons, the Board finds that tinnitus did not start in service, and the Veteran's allegations in the Notice of Disagreement, the VA Form 9, and at the October 2019 Board hearing of in-service tinnitus are found not credible. In the November 2017 VA medical opinion, the audiologist wrote that with no timeframe of the onset and a history of military and post-service noise exposure, she explained that she could not provide an opinion on tinnitus without resorting to mere speculation. The November 2017 VA audiologist was unable to opine as to the nexus of the Veteran's tinnitus and therefore, the opinion does not provide a nexus to service. The Veteran was afforded a VA audiology examination in December 2019. The Veteran stated that he had tinnitus in both ears that is constant and reported he noticed the tinnitus after basic training. The audiologist opined that the Veteran's tinnitus is considered less likely as not caused by military noise exposure. The audiologist stated that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not (50 percent probability or greater) a symptom of hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The audiologist also stated that the Veteran's tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The audiologist explained that the Veteran reported onset of tinnitus during basic training. However, the audiologist noted that during the November 2017 conversation, the Veteran was unable to provide a timeframe of when the tinnitus began. The audiologist concluded that with normal hearing at the time of separation, inconsistent history of onset of tinnitus, noise exposure in service and post service, and no documented reports of tinnitus in service and hearing loss having its onset after service, it was less than likely that tinnitus is the result of the Veteran's military noise exposure. As part of the July 2021 Joint Motion, the parties agreed that the rationale provided by the December 2019 VA audiologist was inadequate. Specifically, they found that in relying on the Veteran's normal hearing at separation, it "appear[ed]" that the examiner failed to acknowledge that hearing loss and tinnitus are separate and independent disabilities. Thus, "the examiner's suggestion that normal hearing automatically forecloses the possibility that tinnitus existed at the time of separation" rendered the December 2019 opinion inadequate. Therefore, the December 2019 VA medical opinion is not probative. As a result, the Veteran was provided another VA examination in January 2022. During the January 2022 VA examination, the Veteran stated that he was unsure of the timeframe when he began experiencing tinnitus. He stated that after thinking long and hard about it, he was not exposed to noise prior to joining the service besides a power drill and had not been exposed to noise following the service without hearing protection. Therefore, he thought his tinnitus has to be from basic training on the rifle range. The audiologist noted that the Veteran had normal hearing upon discharge from the service. The audiologist wrote that the Veteran's service treatment records are absent of tinnitus during his time in the service as well as the fact that the Veteran denied issues at discharge from the service in relation to tinnitus or ear symptoms. The audiologist acknowledged that the Veteran noted ear, nose, or throat trouble, however, noted that further explanation showed the Veteran had a deviated septum, which would not cause tinnitus. The audiologist concluded that the Veteran's tinnitus was less likely than not incurred in or related to in-service noise exposure that occurred while on active duty. The audiologist noted that the Veteran was unable to provide a date of onset during the November 2017 conversation and that during the examination in December 2019, the Veteran reported the onset of tinnitus was after basic training. The examiner wrote that during the current examination, the Veteran reported he was not exposed to any noise prior to the service, except maybe an electric drill, and did not have noise exposure following the service, therefore he believed his tinnitus is due to noise exposure during basic training. The audiologist explained the Veteran was asked if he noted the noise in his ears during basic training or following basic training, the Veteran stated he is not certain when the actual audible noise began in his ears. The audiologist concluded that given all the available evidence, as well as the Veteran's report of onset of tinnitus having inconsistencies, it was less than likely that the Veteran's tinnitus had its onset during service. The Board accords the January 2022 VA medical opinion high probative value, as the audiologist had reviewed the record and provided a rationale for the opinion. The audiologist's conclusion that the Veteran has provided inconsistent facts regarding the onset of tinnitus is a conclusion the Board has made, as the Veteran's statements have been inconsistent in that he has been unable to state the onset of tinnitus in November 2017 and January 2022 and at other times reported the onset as occurring during service. The audiologist's opinion also relied on the belief that the Veteran did not have tinnitus while in service, which is a finding of fact that the Board has made. Thus, the January 2022 medical opinion is based on the facts that the Board finds are accurate, which is that the Veteran did not have tinnitus during service. Regarding presumptive service connection, there is no competent and credible evidence of record that the Veteran's tinnitus manifested to a compensable degree within one year of the Veteran's discharge from service. See 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran asserts he talked about ringing in his ears while in service. The Board acknowledges the Veteran's assertions that his tinnitus is related to in-service noise exposure. However, to the extent that the Veteran asserts a nexus between his tinnitus and noise exposure during service, such assertion is not probative, as he has not been shown to have medical expertise. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Thus, there is no competent evidence upon which to weigh against the negative January 2022 VA audiologist's opinion. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for tinnitus is warranted. Rather, the evidence persuasively weighs against service connection for tinnitus. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.