Citation Nr: 18155618 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-25 029 DATE: December 4, 2018 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT The evidence is insufficient to show that the Veteran’s tinnitus had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1974 to December 1976. 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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) (2017). Service connection for tinnitus, a chronic disability, may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence shows a current diagnosis of tinnitus. See May 2014 VA Examination Report. The issue that remains disputed is whether the Veteran’s tinnitus had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. The preponderance of the evidence is against the claim. The Veteran’s service treatment records indicate that he was exposed to acoustic trauma but are negative for complaints of or treatment for tinnitus. A November 1976 separation examination indicates that he denied hearing loss and ear trouble. Notably, there was no separation audiogram of record. The Veteran was afforded a VA audiological evaluation in May 2014. The Veteran reported recurrent constant bilateral tinnitus of gradual onset. The Veteran did not meet VA’s statutory criteria for hearing loss. That issue was denied by the RO and is not on appeal. The examiner opined that the Veteran’s tinnitus was less likely as not related to service. The examiner reasoned that the Veteran did not incur impaired hearing or significant threshold shifts in either ear during service. As there was no hearing loss or threshold change, there was no noise injury. The examiner noted that to opine that the tinnitus was caused by military service, one would have to accept the scientifically unsubstantiated premise that tinnitus is related to some undiagnosed, latent noise injury. Such an opinion would directly contradict the objective evidence to include the audiogram. The Board finds the May 2014 VA examination and opinion probative to the question at hand. The examiner considered an accurate history, to include the Veteran’s contentions. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s representative challenged the examiner’s findings that there was no significant threshold shift in the Veteran’s hearing and there was no noise injury. See November 2016 VA 646. Specifically, the Veteran’s representative asserts that it is uncertain how the examiner came to that conclusion when there was no separation audiogram to compare to his entrance examination. However, the Veteran’s most recent audiogram – which was conducted over 37 years after separation – indicates the Veteran does not have a current diagnosis of hearing loss. This is consistent with the examiner’s finding that the Veteran did not have noise injury in service. In addition, a November 1974 audiogram taken after the Veteran was exposed to noise trauma was negative for hearing threshold shifts compared to his entrance audiogram. Thus, the Board finds the examiner’s opinion and rationale consistent with the record. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the Veteran’s tinnitus did not have its onset in service and is not related to noise exposure in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s current tinnitus is related to noise exposure in service requires medical expertise to determine. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s tinnitus is not related to service. The Board has also considered whether service connection is warranted on a presumptive basis. However, the evidence does not show – and the Veteran does not assert – that his tinnitus manifested to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.307, 3.309. (Continued on the next page)   Accordingly, entitlement to service connection for tinnitus is not warranted. 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 Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel