Citation Nr: 21028175 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-30 928 DATE: May 10, 2021 ORDER Entitlement to service connection for a disability manifested by imbalance, to include as secondary to tinnitus or bilateral hearing loss, is denied. FINDING OF FACT The Veteran has not been diagnosed with a disability manifested by imbalance. CONCLUSION OF LAW 1. The criteria for service connection for a disability manifested by imbalance, to include as secondary to tinnitus or bilateral hearing loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to September 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is of record. The Board previously remanded this case in February 2020, July 2020, and February 2021 for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to service connection for a disability manifested by imbalance, to include as secondary to tinnitus or bilateral hearing loss Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for disability manifested by imbalance to include as secondary to his service-connected bilateral hearing loss and/or tinnitus. The Veteran's service treatment records (STRs) are silent for any complaint, treatment, or diagnosis for any imbalance symptoms. The Board notes that the Veteran's VA medical and private treatment records show complaints of imbalance, several falling incidents, and the use of a walker. The Veteran was afforded VA examinations to determine the nature and etiology of any disability manifesting in imbalance in March 2020 and March 2021. Additionally, an addendum opinion was obtained on the Veteran's behalf in August 2020 from the March 2020 examiner. In all instances, the examiners acknowledged the Veteran's reports of imbalance but determined that the Veteran does not have a current diagnosis of a vestibular disorder, inner ear disorder, balance disorder, vertigo, or any condition manifesting in imbalance. Therefore, while the Veteran contends that he suffers from impairment of balance, there is no current diagnosis of or treatment for an actual underlying disability, and no underlying disability has been clinically diagnosed during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, there is no credible persuasive evidence that the Veteran's impaired balance has produced symptoms productive of chronic functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated in 38 U.S.C. § 1110, even in the absence of a presently-diagnosed condition). The Board reiterates that the term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen, 7 Vet. App. at 448. No such impairment has been shown as a result of the claimed loss of balance. Based on a careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against finding service connection for a disability manifesting in imbalance is warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent evidence showing a current diagnosis of a disability manifesting in imbalance, it is unnecessary to address the remaining elements of the claim for service connection. See id. Finally, while the Veteran is competent to report symptoms of disability, he does not have the specialized medical training to render a diagnosis of a disability manifesting in imbalance. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, the Veteran has not provided any other competent or credible evidence of the existence of a currently diagnosed disability manifesting in imbalance. Accordingly, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for a disability manifesting in imbalance. Because the evidence fails to establish that the Veteran has a current diagnosis, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.