Citation Nr: A25035640 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240430-438941 DATE: April 17, 2025 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The competent, credible, and probative evidence is not in approximate balance, but persuasively establishes that the Veteran's tinnitus was not incurred during or as a result of his military noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1980 to August 1984. He had additional service in the United States Navy Reserves. In April 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2024 rating decision that denied service connection for tinnitus. In April 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2024 decision. Therefore, the Board may only consider the evidence of record at the time of the March 2024 decision and any evidence submitted during an applicable evidentiary window. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to service connection for tinnitus The Veteran contends that service connection for tinnitus is warranted on the basis that he was exposed to and developed tinnitus from acoustic trauma in service, in the form of five-inch guns and .38 caliber guns starting in 1976. During his February 2024 VA examination, he reported that he was a gunner's mate with exposure to 5-inch guns, .45 caliber and .38 caliber firearms, and 54-mount guns, and that he could not recall the use of hearing protection. Further, he was also a boatswain mate without the use of hearing protection, primarily on the bridge, and was exposed to the engines on a tugboat without the use of hearing protection and he worked in 3 different shipyards while in military. 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 also known as a "nexus" between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases such as organic diseases of the nervous system, which include tinnitus, a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. The February 2024 VA examiner also diagnosed tinnitus. In the April 2024 HLR decision, the AOJ made a favorable finding that a qualifying event, injury, or disease had onset during service. Specifically, the Veteran's military occupational specialty (MOS) of Boatswains Mate had a high probability for hazardous noise exposure. Accordingly, the elements of a current disability and in-service hazardous noise exposure are demonstrated, and the remaining question is whether there is a nexus between the two. The service treatment records (STRs) do not contain any complaints, treatment, or findings related to tinnitus. A June 1976 Report of Medical History for enlistment into Reserve service was negative for tinnitus. Reports of Medical History dated in October 1992 and February 1984 show the Veteran reported ear, nose, and throat trouble, but this was specifically indicated as hay fever and allergies. A February 1984 Report of Medical Examination was negative for tinnitus. The Veteran underwent hearing conservation evaluations during service. Two reports shows that he specifically denied having ever had prolonged ringing in the ears. He also indicated that when available, he wore hearing protection devices. The Veteran's August 1984 separation examination does not show a diagnosis or complaint of tinnitus. The post-service medical evidence does not document any complaints or treatment for tinnitus and a progress note from October 2013, specifically notes in a review of symptoms that the Veteran had no hearing difficulty and no tinnitus. During a February 2024 VA examination, the Veteran reported noise exposure both during and after military service. He noted that he was a gunner's mate with exposure to 5-inch guns, .45 caliber and .38 caliber firearms, 54-mount guns during service. He could not recall the use of hearing protection during service. The Veteran reported that in service he was a right-handed shooter sighting with his left eye, and also Boatswain Mate without the use of hearing protection, primarily on the bridge. He reported exposed to the engines on a tugboat without the use of hearing protection and stated that he worked in three different shipyards while in military. The Veteran reported occupational noise exposure after service as well. He indicated that he was a was security for a nuclear power plant with shooting as required for qualifications. Regarding the history of his tinnitus, the Veteran stated that the onset of his tinnitus was unknown. He noted that he did not think the tinnitus was abnormal until he was told that his symptoms were tinnitus; he reported that he could not recall the circumstances of onset. He noted that his tinnitus had remained essentially unchanged since onset. He reported intermittent tinnitus for each ear, described as low to mid pitched tones for the right ear, and high tones for the left ear with frequency estimated as a couple time a week lasting for 1-2 minutes in each ear. The audiologist who conducted the examination opined that the Veteran's tinnitus is less likely related to his military noise exposure. The examiner noted that the Veteran reports intermittent tinnitus in each ear and the frequency is estimated as a couple times a week; the duration was possibly 1 to 2 minutes for either ear. The examiner explained that tinnitus associated with noise exposure is typically of a continuous nature and due to the continued intermittent nature of the Veteran's tinnitus, it is less likely than not the result of military noise exposure. Further, the audiologist noted the results of medical examinations from 1976, 1980, 1982, and 1984, and that the results of today's assessment were consistent with normal hearing acuity through 2000 Hz for each ear precipitously sloping to a severe sensorineural hearing loss (R > L) bilaterally. The audiologist concluded that the Veteran's tinnitus is less likely than not associated with hearing loss resulting from military noise exposure. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board notes that there is a single medical opinion in the file from the VA audiologist. The Board notes that there is no medical evidence of record that opposes or contradicts the opinion provided by the January 2024 VA examiner. The Board acknowledges that the Veteran believes his tinnitus is related to his military service; however, his lay assertion is outweighed by the competent and probative medical opinion offered by the VA audiologist. The examiner based her conclusion upon review of the service and post-service medical evidence and the Veteran's lay assertions regarding his noise exposure, and the onset and nature of tinnitus symptoms, and her medical expertise as an audiologist. As such, her opinion is highly persuasive. To the extent that the Veteran's lay assertions are intended to establish a nexus between his tinnitus and service, the Board notes that his assertions are afforded little probative value because they are not consistent with the other evidence of record which does not establish that tinnitus began during service or was incurred because of military service. Further, the Veteran is not shown to have the expertise to opine on complex matters, such as the etiology of tinnitus, particularly where there is both military and post-military noise exposure. As such, the Veteran's purported nexus statements are not considered of equal probative weight to the VA examiner's opinion. Finally, the Board also finds that because the lay and medical evidence does not reflect that the Veteran had tinnitus during his first post-service year, presumptive service connection for tinnitus is not warranted. There also is no credible evidence demonstrating tinnitus onset in service and continued after discharge; therefore, service connection on the basis of chronicity and continuity of symptomatology, is not warranted either. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). In this regard, the Board notes that the Veteran reported an onset date of 1976 on his VA Form 21-526EZ, but later informed the VA examiner that he did not recall the onset of tinnitus. There are no reports of tinnitus or ear ringing in service. The Veteran's STRs reflect no complaints pertaining to the tinnitus although they do reflect that the Veteran presented for many other problems and complaints. It appears incongruent that the Veteran would present for in-service care involving health concerns and yet not for any tinnitus symptoms that had been ongoing since 1976 as he now alleges. The Board notes further that during hearing conservation assessments on active duty, the Veteran affirmatively denied having ever had prolonged ringing in the ears. He also denied tinnitus symptoms after service in 2013. In short, the Veteran's current assertion that his tinnitus symptoms onset in service and continued since is not credible. In sum, the Board finds that the competent, credible, and probative evidence establishes that the Veteran's tinnitus was not incurred during service or as a result of his military noise exposure. As such, there is no benefit of the doubt to resolve in favor of the Veteran. Service connection for tinnitus is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel B. Rosser 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.