Citation Nr: 18150852 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-43 186 DATE: November 16, 2018 ORDER Service connection for tinnitus is granted. REMANDED Service connection for ingrown toenails is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether tinnitus was incurred in service. CONCLUSION OF LAW Resolving reasonable doubt in the Appellant’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty for training (ACDUTRA) from October 1980 to March 1981; from January 1985 until May 1985; and from March 1986 until September 1986 in the United States Army Reserve. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee denying service connection for tinnitus and for ingrown toenails. The term “veteran” is defined in 38 U.S.C. § 101 (2) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the veteran was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 ; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6 (c)(1). Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Additionally, other organic diseases of the nervous system, which includes tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309 (a). 38 C.F.R. § 3.307. Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the Veteran’s separation from service. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). However, the regulations concerning presumptive service connection, the presumption of soundness and the presumption of aggravation do not apply to periods of ACDUTRA or INACDUTRA. Biggins, 1 Vet. App. at 477-78. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent 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). Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). Service connection for tinnitus is granted. At the outset, the Board finds that the Appellant currently has tinnitus. As a layperson, the Appellant is competent to identify tinnitus and testify as to observable symptoms such as ringing in her ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Next, the Board finds that the Appellant incurred in-service acoustic trauma. During the September 2015 VA examination, the Appellant credibly recounted noise exposure, the result of handling M-16s during training exercises without hearing protection. The DD 214 reveals she has received a M-16 Rifle (Sharpshooter) badge for her service. Accordingly, as noted above, in-service acoustic trauma has been established as consistent with the types, places, and circumstances of the Appellant’s active service. Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Appellant’s tinnitus is due to the acoustic trauma she experienced during military service. In an April 2015 private physician statement, it is noted that the Appellant was treated at the facility and diagnosed with tinnitus. The physician concluded that the time frame in which the disability began, before diagnosis, cannot be pinpointed. However, it is as likely as not, that the Appellant’s exposure to small arms fire and heavy equipment during her active military service contribute to or cause her current tinnitus. The Appellant underwent a VA examination in September 2015. The physician found the tinnitus to be less likely than not caused by or result of military noise exposure. The rationale was based on the lack of documented reports of tinnitus during military service. He maintained that history of noise exposure is known to cause tinnitus, but to state that tinnitus is military related would solely be based on the Appellant’s complaint. He went on to conclude that based on The Noise Manual, only seldom does noise cause permanent tinnitus without also causing hearing loss, and the Appellant’s hearing sensitivity was within normal limits during military service and is essentially currently within normal limits, except for mild hearing loss at one frequency in both ears. The Appellant maintains that her military training and duties caused or contributed to her tinnitus. She specifically states that the tinnitus began when she was in active duty, is chronic in nature, and continues to the present. The Board finds there is reasonably sufficient evidence to establish a nexus between tinnitus and military noise exposure. First, the Appellant is competent to describe what she experienced in service, and she is competent to report tinnitus. In light of the above, the Appellant has credibly stated ringing in her ears beginning in service until the present. These contentions are recorded in the Notice of Disagreement (NOD) January 2016, and her Statement in Support of Claim April 2015, and supported by the private medical opinion of record. The Board notes the conflicting medical evidence regarding the etiology of the Appellant’s tinnitus in the form of the September 2015 VA examination and the April 2015 private physician statement. Both doctors considered the Veteran’s noise exposure during military service, provided an adequate rationale, and expressed a medical conclusion with certainty. As such, both opinions are equally probative. Nonetheless, the Board finds that when the evidence is viewed in its entirety, including military occupation, lay assertions, and medical opinions, it is at least as likely as not that tinnitus is related to service. That is, the evidence of nexus is in relative equipoise. 38 C.F.R. § 3.303 (d). In sum, the Board finds a grant of service connection for tinnitus as appropriate. The evidence is in relative equipoise and the benefit of the doubt rule is therefore applicable. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) REASONS FOR REMAND Service connection for ingrown toenails is remanded. The Appellant contends that in 1980, due to wearing tight military boots, she developed an ingrown toenail. Service treatment records show that in February 1981 the Appellant presented with an ingrown toenail on her left foot, first toe, and an excise was scheduled for the next day. Her separation examination in March 1981 again notes ingrown toenail. The Appellant maintains that she was seen by the military doctor who diagnosed the injury as first digit ingrown nail in the right and left foot. See VA Examination September 2015. She explains that the doctor wanted to perform surgery to remove the nails, but she failed to follow-up with the doctor, and from 1980 to 2015 she continued to have ingrown toe nails. In an April 2015 statement by a private physician, it was noted that the Appellant was treated at the facility and diagnosed with ingrown toenails. The physician opined that the exact date the disability began, before diagnosis, cannot be pinpointed. However, it is as likely as not, that the Appellant’s military service, training and duties contributed to aggravate her ingrown toenail condition. A few months later the Appellant underwent a VA examination in September 2015. Contrary to the April 2015 examination, the examiner found that no skin condition was currently diagnosed, and that the Appellant does not have a current ingrown toenail condition which was incurred during service. Overall, the Board finds that, due to the conflicting medical evidence of record, additional medical development is necessary. The April 2015 physician statement lacked appropriate analysis concerning the nexus between the ingrown toenail disability and the Appellant’s service. Also, notably, the VA examination failed to discuss the contrary medical evidence of record in the April 2015 private examination, and address the Appellant’s lay statements concerning a current ingrown toenail disorder. Additionally, during the VA examination the Veteran reported that she continues to follow up with Kaiser but denied any specific treatment. Records from Kaiser have not yet been associated with the claims file and should be obtained. The matter is REMANDED for the following action: 1. Obtain all the Appellant’s outstanding private treatment records for her ingrown toenail that are not currently of record. 2. Schedule the Appellant for an appropriate VA examination to assess whether an ingrown toenail disability is currently diagnosed. The Appellant’s claims folders, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report. (Advise the Appellant that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2017).) After examining the Appellant, the examiner should provide an opinion as to the following: (Continued on the next page)   a) whether the Appellant has an ingrown toenail disability or had one at any point during the pending appeal. b) whether it is as least as likely as not any ingrown toenail is connected to her service, including ingrown toenails noted at separation. The examiner must comment on the April 2015 private medical evidence of record and the Appellant’s lay statements. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Russell, Associate Counsel