Citation Nr: 18151575 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 07-38 914 DATE: November 20, 2018 ORDER Entitlement to service connection for tinnitus, to include as secondary to the service-connected headaches, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis is granted. FINDINGS OF FACT 1. The competent, probative evidence of record fails to relate tinnitus to service or a service-connected disability. 2. The Veteran’s service-connected migraine headaches disability have prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5103A, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1976 to December 1978. In support of his claims, the Veteran testified before the undersigned at a May 2014 videoconference hearing. The appeal was remanded in July 2014 and May 2018 for additional evidentiary development. Service Connection for Tinnitus The Veteran is seeking service connection for tinnitus as directly attributable to his military service or, alternatively, due to or aggravated by his service-connected migraine headaches. Specifically, the Veteran has argued that his tinnitus is due to a head injury he sustained while in Germany. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). On February 9, 2015, the United States Court of Appeals for Veterans Claims (Court) held that tinnitus was a disease, rather than merely a symptom and that 38 C.F.R. § 3.309 (a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[] of the nervous system.’“ See Fountain v. McDonald, 27 Vet. App. 258 (2015). As the Court held tinnitus to be a chronic disease subject to applicable presumptions, the disease now falls within the parameters of 38 C.F.R. § 3.303 (b), as to claims of chronicity. With regards to secondary service connection, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Tinnitus is defined as “a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (DORLAND’S) 1956 (31st ed. 2007). Indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). As an initial matter, the evidence establishes the Veteran has a current diagnosis of tinnitus, as indicated in his April 2006, April 2016 and March 2018 VA examinations. Therefore, the merits of this claim turn on whether the currently diagnosed tinnitus is attributable to his military service pursuant to any theory of entitlement. The Board concludes that, while the Veteran has a current diagnosis tinnitus, the preponderance of the evidence is against finding that the Veteran’s tinnitus is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability, or directly attributable to his military service. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran’s service treatment records are silent for any diagnoses of, complaints of, or treatment for tinnitus. These records do, however, show he received treatment for a head injury in March 1977. Additionally, the Board does not find any evidence to suggest the Veteran was exposed to acoustic trauma during service. Indeed, the Veteran does not even allege that he was exposed to acoustic trauma. Following his separation from service in 1978, the first treatment records noting complaints of tinnitus are not until the Veteran’s April 2006 VA examination, after the Veteran filed his claim for service connection for this disorder. Thus, based on the record, there is no indication that the Veteran had tinnitus during service or within a year of his separation. Given the extensive amount of time after service before the Veteran presented with tinnitus complaints is significant and the Board finds that it weighs against the Veteran’s claim to establish a claim based on a presumption. See Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). Furthermore, even though the Board acknowledges the Veteran’s report that his current tinnitus relates to his military service, the Board finds that the Veteran is not competent to medically attribute his to his service or any type of in-service acoustic trauma; such an etiology determination requires medical expertise, which the record does not support. See 38 C.F.R. § 3.159 (a)(1) versus (a)(2). Moreover, chronicity and continuity of tinnitus since service is not established, especially where the Veteran has not submitted any evidence to demonstrate that his symptoms have been continuous since service. In sum, based on the record, the Veteran’s tinnitus did not manifest during or within the year after his separation from service, and the evidence of record does not establish that he has had continuous tinnitus symptoms since he separated from service. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. The failure to establish a presumptive basis of service connection, with regard to the Veteran’s disability, does not preclude the Veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113 (b). Instead, the Veteran may establish direct service connection to the current disability. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993), which held that the Veteran may submit evidence that the disability is causally related to service. In April 2006, the Veteran underwent a VA examination wherein the VA examiner noted the Veteran’s report of new onset tinnitus. However, no etiological opinion was provided. The Veteran was reexamined in April 2016. The VA examiner confirmed a diagnosis of tinnitus, but ultimately concluded it was less likely than not that the diagnosed tinnitus is due to the Veteran’s service due to the fact it was not noted until 20 years after service. While the VA examiner provided an opinion against a finding of direct service connection, the examiner did not provide an opinion as to whether the diagnosed tinnitus may be due to aggravated by the service-connected headaches disability. In March 2018, the Veteran underwent a neurological examination pertaining to his migraine headaches. Following a physical examination of the Veteran, a review of the claims file, and an in-person interview, the examiner determined it was less likely than not the diagnosed tinnitus is due to the service-connected migraine headaches. As rationale, the VA examiner noted that the tinnitus began approximately 20 years after the in-service head injury and does not always correlate with the headaches. However, during the May 2018 Board remand, it was noted the examiner failed to provide an opinion as to whether the service-connected migraines aggravated the diagnosed tinnitus. In compliance with the May 2018 Board remand, an addendum opinion was provided in June 2018 that there is no medical evidence that the Veteran’s tinnitus is caused by or made chronically worse by the service-connected migraines. Based on the foregoing, the Board concludes that the preponderance of the evidence weighs against the service connection claim. The multiple VA examinations of record all noted that the Veteran’s tinnitus is not related to service. The examinations, collectively, resulted in a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran’s pertinent medical and lay history. The examiners provided rationale regarding the Veteran’s current condition and failed to find a relationship between the Veteran’s active duty service and the results of the examination. There are no conflicting opinions. The Veteran has asserted his personal belief that he has tinnitus due to his in-service head injury due to a service-connected disability. The Veteran is competent to report the occurrence of the in-service injury and even to describe his symptoms as they present, but he is not competent as a layperson to opine regarding the etiology of a disability that demonstrably became manifest many years after service. Kahana, 24 Vet. App. 428. There is no competent medical evidence of record reflecting that the Veteran demonstrated tinnitus to a compensable degree within one year of discharge from active duty, and the VA examiners’ opinions also weigh against this finding as there is no indication the Veteran sought treatment tinnitus until approximately 20 years after his separation from service. Otherwise, there is no medical evidence of record indicating that the Veteran’s tinnitus was caused or aggravated by his active duty service, or secondary to a service-connected disability. Accordingly, entitlement to direct service connection under 38 C.F.R. § 3.304, presumptive service connection under 38 C.F.R. § 3.309(a), and secondary-service connection under 38 C.F.R. § 3.310 is not shown. In sum, the Board has found the Veteran does not have tinnitus that is incurred in, due to or aggravated by service. Accordingly, the criteria for service connection is not met and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 361 (1993). If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). The Veteran does not meet the threshold rating requirements as his service-connected migraine headaches are rated at 50 percent disabling and his only other service-connected disability, a scar of the right hand, is evaluated as 10 disabling. As such, his combined rating is 60 percent, effective from October 31, 2005. The Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, and pursuant to the Board’s May 2018 remand, the Veteran’s claim was forwarded to the Director of VA’s Compensation Service for extraschedular consideration. In September 2018, the Director determined that TDIU on an extraschedular basis was not warranted. Since the Director determined that entitlement to an extraschedular rating based on individual unemployability was not warranted, the Board now has jurisdiction to decide the issue. The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). The April 2016 VA medical examination report reflects that the Veteran’s service-connected headaches are characterized by frequent prostrating attacks, 20 times a month and lasting up to 8 hours per day. The VA examiner stated that this would prevent the Veteran from gainful employment considering the length of time associated with each headache. Additionally, it was noted that the Veteran needs to lay down because he becomes dizzy and feels a loss of balance. The examiner specifically stated that the Veteran’s contentions were taken in consideration when rendering the opinion. The issue of entitlement to a TDIU on an extra-scheduler basis was appropriately referred to the Director, and, in a September 2018 memorandum, the Director found that none of the available evidence supports the Veteran’s contention that his service-connected disabilities of migraine headaches and laceration of the right hand, or a combination of the effects thereof, render him unable to perform or obtain and secure substantially gainful occupation. (Continued on the next page)   In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of the service-connected migraine headaches disability. The medical evidence reflects the Veteran’s migraines have a moderate to severe effect on his usual daily activities, to include traveling; which for most occupations traveling would be essential to employment. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence supports a finding of a TDIU on an extra-schedular basis. See 38 U.S.C. § 5107. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel