Citation Nr: 18153853 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-16 788A DATE: November 28, 2018 ORDER Service connection for tinnitus is denied. FINDING OF FACT The Veteran’s tinnitus is not linked to disease or injury incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are not satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1961 to June 1965. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office Service Connection A. Law Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus associated with acoustic trauma (an organic diseases of the nervous system), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, including tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Analysis The Veteran claims service connection for tinnitus. He states that his tinnitus began during active service, in October 1961, when an explosive detonated near his head during a training exercise. He experienced ringing in his ears the next day, and went to sick bay for treatment. The treating medic told him that it would go away in a couple of weeks. He states that it did not, and has continued to the present. See April 2017 VA Form 9; August 2016 Notice of Disagreement; December 2015 CAPRI Record. For the following reasons, the Board finds that service connection is not established. The October 1961 training exercise in which the explosion and onset of tinnitus reportedly occurred was not under combat conditions or during a period of war. See 38 C.F.R. § 3.2 (2017) (listing periods of war). Thus, the combat presumption, whereby a veteran’s statements alone may be sufficient to establish service incurrence of a disease or injury without supporting records, does not apply. See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). The Board finds it is not credible that the Veteran’s tinnitus had its onset during service following an explosion. The Veteran states that he went to sick bay for his tinnitus the day after the explosion reportedly occurred. However, the service treatment records show that he was treated for a number of conditions from August through October 1961, and in following years, but do not reflect treatment or complaints of tinnitus or ringing in the ears. While the Board lacks the medical expertise to determine whether treatment or complaint of tinnitus would ordinarily be recorded in a medical record, the fact that treatment for other conditions including a rash was noted leads the Board to find it implausible that the Veteran’s complaint of tinnitus following a nearby explosion would not similarly be recorded. The Board must also consider the places, types, and circumstances of service. 38 C.F.R. § 3.303(a). In this regard, the Board does not doubt the Veteran’s statement that he had training under simulated combat conditions. Nevertheless, the Board does not find it credible that the Veteran’s tinnitus manifested in service following a nearby explosion. Regarding the explosion itself, there is no supporting evidence that such an event occurred. The Veteran’s bare statement is not sufficient to establish the fact. Cf. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that the absence of supporting records can weigh against lay evidence asserting certain non-combat events during service such as chemical exposure). Regarding the reported onset of tinnitus, not only is there no mention of tinnitus or ringing in the ears in the service treatment records despite the Veteran’s statement that he went to sick bay with complaints of tinnitus (as discussed in more detail above), but in a September 1962 report of medical history, the Veteran denied a history of ear, nose, or throat trouble. This record is significant because it is dated after the reported onset of tinnitus, which the Veteran states began in 1961 and never went away. Notably, he reported a history of other conditions in this record, including eye trouble. The fact that he reported other conditions indicates that he would have reported the history of tinnitus, had it occurred as he states. His denial of a history of ear trouble therefore supports a finding that the Veteran’s tinnitus did not manifest in service as he states. Thus, the September 1962 report of medical history, in which he denied a history of ear trouble, weighs against the credibility of the Veteran’s statement regarding the onset of his tinnitus. Finally, there is no evidence of tinnitus until a December 2015 VA treatment record, which reflects the Veteran’s report of a history of tinnitus since 1961, when he was exposed to a nearby explosion. This record is dated many years following service separation, and only shortly before the Veteran submitted the present claim. It does not counterbalance the contemporaneous evidence discussed above. Cf. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Thus, the Board finds that the Veteran’s statement recorded in this record regarding the onset of his tinnitus lacks credibility for the reasons already discussed. In conjunction with the evidence discussed above, the fact that there is no evidence of treatment or symptoms of tinnitus for more than fifty years following service separation, and then only shortly before the Veteran submitted the present claim in March 2016 (following a January 2016 Intent to File), weighs against a finding that the Veteran’s tinnitus manifested in service. In this regard, a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran’s health and medical treatment during and after military service, as evidence of whether a condition was incurred in service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that the Veteran’s tinnitus did not manifest in service or until many years following service separation. Consequently, because service incurrence of a disease or injury related to the Veteran’s tinnitus is not established, including by way of chronicity or continuity of symptomology, the criteria for service connection are not satisfied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. (Continued on the next page)   Because the preponderance of the evidence weighs against service connection for tinnitus, the claim must be denied. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Gilbert, 1 Vet. App. at 55. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck