Citation Nr: 1328842 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-36 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from October 1951 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDING OF FACT The evidence is in relative equipoise as to if the Veteran's service-connected tinnitus was caused or aggravated by his service-connected hearing loss disability. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as other organic diseases of the nervous system (which would include tinnitus), if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Further, as this is a regulatorily-established "chronic disease," it is capable of service connection via a showing of continuity of symptomatology between service and present. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the current case, the Veteran asserts that he has tinnitus which began in approximately 1978. While this was many years after service separation, he attributes this to his noise exposure in service or, alternatively, to his service-connected bilateral hearing loss disability, which is currently evaluated as 40 percent disabling. The medical opinions of record which specifically address tinnitus are not helpful in this case, as they either fail to discuss the contended secondary relationship or, as is the case of the most recent examination of February 2011, are speculative in nature. Accordingly, they are of little probative value in addressing the issue on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Indeed, the Board notes that the award of service connection for bilateral hearing loss was based off of examination results dating in April 1997. It was noted that there had been an in-service acoustic trauma which caused the subsequent development of hearing loss. Subsequent VA audiology examination in 2002 noted that it was progressive in nature, and that hearing loss symptoms, themselves, were more severe than what was reported five years prior. These two examinations did not specifically address tinnitus. The Veteran has, during a December 2008 VA examination, since described tinnitus onset as having occurred in approximately 1978. It was, at that time, noted by him as something which accompanied his hearing loss. The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability" (or, with regard to this case and the secondary contention, between a service-connected disability and the claimed disability) Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). With regard to the Veteran's testimony, the Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Tinnitus is a ringing in the ears, and is uniquely identifiable to the Veteran through his senses. The Veteran reported at a December 2008 VA audiology examination that he had been experiencing tinnitus since 1978, which was approximately 30 years since discharge. The opinion as to a diagnosis of tinnitus, which, as something that can only be perceived by the senses of the Veteran, is, in fact, something on which the Veteran is competent to report. See Barr at 303. With respect to etiology, the Veteran has stated that an onset was not until many years after service. While he has attributed this to noise exposure or to his hearing loss, the Board notes that he is not competent to make an opinion on etiology, as that is something that is "medical in nature" (which would require medical expertise). See Jandreau at 492. However, the Board notes that, as of 2002, the Veteran's entire hearing acuity picture was noted to be "progressive" in nature, and that the Veteran has reported that his tinnitus has also grown in severity over the years. Specifically, a clinical report of October 2008, which was not done in concert with a VA examination, noted complaints of a now "constant" bilateral tinnitus. Essentially, the Board notes that as a medical professional has determined the Veteran's hearing disability picture to be progressive, and as tinnitus has apparently grown to a constant state since 1978 (subsequent to the establishment of bilateral hearing loss as being related to in-service acoustic trauma), the evidence is, at the very least, in relative equipoise as to if the service-connected bilateral hearing loss disability caused, or alternatively, aggravated tinnitus beyond the natural course of the disease process. The constant ringing in the ears has grown in severity just as the depreciation of hearing acuity has, which suggests that that the medically-assessed "progressive" nature of the hearing disability picture includes tinnitus and that the hearing loss and tinnitus are, either causally or by aggravation, related. As this is the case, the claim for service connection will be granted. ORDER Entitlement to service connection for tinnitus is granted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs