Citation Nr: 18156041 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-49 853 DATE: December 6, 2018 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for residuals of a brain hemorrhage is remanded. FINDING OF FACT The Veteran’s tinnitus did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, and is not etiologically related to his active duty service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1961 to May 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Pursuant to his request, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge in October 2018. However, the Veteran failed to appear at the scheduled time and location. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. 20.702 (d) (2018). As no good cause has been alleged, the request for a hearing is considered withdrawn. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Tinnitus (an organic disease of the nervous system) is considered a chronic condition under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established for tinnitus based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for tinnitus The Veteran contends his tinnitus is related to his military service. The Board notes that the Veteran is currently service-connected for bilateral hearing loss at a noncompensable rating. The question for the Board is whether the Veteran has a current disability that began during service 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 a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are silent regarding any complaints of tinnitus during service. The Veteran’s military entrance and separation physical examinations in April 1961 and March 1964, respectively, indicate his ears and hearing were normal. The claims file does not contain VA or private treatment notes regarding any complaints of tinnitus. The Veteran was afforded a VA audiology examination in January 2018. He reported having a medium pitched ringing in his ears that began 10 years ago. It was noted at the examination that the Veteran served as a Light Weapons Infantryman during service, and was likely exposed to hazardous noise. The examiner diagnosed tinnitus, but opined it was less likely than not that tinnitus was caused by or a result of military noise exposure. He explained that there was a lack of complaints of tinnitus in the service records, as well as a lack of audiology treatment since service separation. The examiner also opined that it was less likely than not a symptom associated with the Veteran’s hearing loss given that his hearing loss onset more than 40 years ago during service, and tinnitus began decades later. While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including hazardous noise exposure, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran reported his tinnitus began 10 years ago, more than 40 years after service separation. Therefore, the evidence does not demonstrate a continuity of symptoms after service, nor that the Veteran’s tinnitus became manifest to a compensable degree during service or within one year from the date of service separation. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). As the preponderance of the evidence demonstrates that the Veteran’s tinnitus is not etiologically related to his military service, he did not experience chronic symptoms of tinnitus in service, continuous symptoms since service, or compensable manifestations within one year of service separation, direct and presumptive service connection for tinnitus may not be established. Accordingly, service connection for tinnitus is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for residuals of a brain hemorrhage is remanded. The RO denied the service connection claim for residuals of a brain hemorrhage, stating that service treatment records fail to show complaints, treatment, or diagnosis for this condition. However, a review of the Veteran’s service treatment records show that he was diagnosed with a cerebral hemorrhage in February 1964, and a March 1964 Report of Medical History indicates the Veteran was hospitalized from February 4, 1964 to February 26, 1964 for a brain hemorrhage. Remand is required for further development and to provide the Veteran with a VA examination. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records from any government or private medical provider and associate them with the claims file. 2. Service treatment records show the Veteran reported he was treated for a brain hemorrhage at Stalten Cuxhaven in February 1964. Contact the appropriate agencies and request any outstanding service treatment, hospitalization, and/or military personnel records and associate them with the claims file. 3. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to obtain an opinion as to whether the Veteran had a brain hemorrhage during service and, if so, to determine any residuals. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided and must specifically discuss the February 1964 diagnosis of cerebral hemorrhage and the March 1964 Report of Medical History indicating that the Veteran was hospitalized from February 4, 1964 to February 26, 1964 for a brain hemorrhage. The examiner must provide a well-reasoned opinion as to each of the following: (a.) Whether the Veteran had a brain hemorrhage while in service; (b.) If the Veteran did have a brain hemorrhage in service, please identify all residuals that have been present at any point during the appeal period. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel