## Facts

- Robert Fountain served in the U.S. Army as a driver of large diesel trucks and reported significant in-service noise exposure, including an explosion near his head.
- He was diagnosed with hearing loss in service and later received service connection for hearing loss at a noncompensable rating.
- He sought service connection for tinnitus and a higher rating for hearing loss.
- A VA examiner opined tinnitus was not related to service largely because early post-service examinations did not document tinnitus and there were no contemporaneous complaints.
- The RO denied service connection for tinnitus; Fountain did not appeal, and the denial became final.
- Fountain later sought to reopen, stating tinnitus began in service and persisted, but he did not report it earlier because he was not asked and did not know it was compensable.
- The Board reopened the claim based on new and material lay statements but denied on the merits, finding Fountain not credible due to the absence of earlier reports in service records, post-service examinations, and prior claims.

## Issues

1. Whether tinnitus may qualify as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) (at least where there is evidence of acoustic trauma), permitting proof via continuity of symptomatology under 38 C.F.R. § 3.303(b).
2. Whether the Board erred by discounting lay testimony of in-service onset and continuous tinnitus primarily because the record was silent and reporting was delayed.
3. Whether the Board provided adequate reasons or bases, including whether its reliance on the VA medical opinion was legally and factually adequate.

## Decision

- The court held tinnitus may fall within “other organic diseases of the nervous system” under 38 C.F.R. § 3.309(a), at least where there is evidence of acoustic trauma.
- The court held service connection for tinnitus may be established through continuity of symptomatology under 38 C.F.R. § 3.303(b).
- The court found the Board’s adverse credibility determination legally deficient because it treated silence in records as an affirmative denial and did not analyze whether tinnitus symptoms would reasonably have been reported or treated.
- The court found the Board’s reasons or bases inadequate, including its uncritical reliance on a medical opinion that relied largely on the lack of documented complaints.
- The court vacated the denial of service connection for tinnitus and remanded for readjudication consistent with the correct legal standards.

## Legal Principles

- Tinnitus can be an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) when supported by evidence of acoustic trauma, bringing it within the chronic-disease framework.
- When a claimed condition is within § 3.309(a), service connection may be established under 38 C.F.R. § 3.303(b) through chronicity in service or continuity of symptomatology after service.
- The Board may not equate the absence of documented complaints with an affirmative denial of symptoms; silence may be negative evidence only after analyzing whether the condition is of the type that would ordinarily be reported or treated.
- The Board must address competent lay evidence and provide an adequate statement of reasons or bases for credibility determinations and for the weight assigned to medical opinions.
- A medical opinion that rejects nexus primarily due to lack of contemporaneous documentation may be inadequate when it fails to account for competent lay reports and the legal availability of continuity-of-symptomatology proof.

## Conclusion

The court required the Board to treat tinnitus, in appropriate cases involving acoustic trauma, as a chronic disease under § 3.309(a) and to reassess credibility and nexus without treating record silence as an affirmative denial, vacating and remanding the tinnitus denial for proper reasons-or-bases analysis and, if needed, an adequate medical opinion.


Fountain v. McDonald, 27 Vet. App. 258 (2015)