Citation Nr: 18152911 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-50 537 DATE: November 27, 2018 ORDER Service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus did not manifest to a compensable degree in service or within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to May 1998. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran has other appeal streams pending as to other issues. These matters will be addressed under a separate decision when activated for review. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to noise exposure in service. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The question for the Board is whether it is as likely as not that the Veteran’s tinnitus manifested to a compensable degree in service or within the applicable presumptive period, or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has tinnitus, the preponderance of the evidence weighs against finding that his disorder manifested to compensable degree in service or within the initial post separation year, or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). STRs reflect no complaints or findings for tinnitus. Tinnitus is first documented at a December 2012 primary care visit more than a decade after service separation. A March 2014 VA examiner found no connection between the Veteran’s tinnitus and service because: STRs were silent for tinnitus; there was no in-service threshold increase suggesting auditory effects of noise exposure; the evidence lacks complaints of or treatment for tinnitus; and the Veteran has a history of occupational and recreational noise exposure. The Board accepts that the Veteran is competent to report his symptoms of ringing ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that he suggests that his symptoms started in service or within the one-year presumptive period after service, the Board finds that he is not credible for the following reasons: He did not report tinnitus in 1998 when he submitted his original VA disability compensation claim; he denied hearing problems on separation from service in 1998 and enlistment in the reserves in 2009; and he reported during VA treatment that he had tinnitus “for years” with no reference to noise exposure in service and he reported more recent noise exposure from civilian employment and volunteering at the local fire department. Essentially, the Veteran’s statements are incongruous with his having had onset of tinnitus in service or within the applicable presumptive period. Consequently, the Board finds that the Veteran’s statements have diminished probative value. To the extent that the Veteran opines that his current tinnitus problems are attributable to in-service noise exposure, the Board finds that he is not competent to formulate an opinion on this because the etiology of delayed onset tinnitus is not susceptible to lay observation and is a complex medical matter that requires an understanding of the anatomy of the ear and hearing mechanisms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion has no probative value. The Veteran has not provided a favorable medical opinion to weigh in this matter. The Board assigns greater probative value to the STRs, coupled with the many years intervening service and the first documented complaints of tinnitus, and the VA examiner’s opinion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). See also, Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim for service connection for tinnitus is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel