Citation Nr: 18151007 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-23 326 DATE: November 20, 2018 ORDER The claim of entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus was incurred in active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from February 2001 to March 2006, to include service in Iraq. The Veteran initially objected to the continuation of his evaluation for posttraumatic stress disorder (PTSD), and a Statement of the Case was issued including that issue in March 2016. The Veteran declined to appeal his PTSD evaluation in his May 2016 Substantive Appeal. Accordingly, the issue is not before the Board. Service Connection 1. The claim of entitlement to service connection for tinnitus Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. § 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). The Veteran engaged in combat while deployed to Iraq. His Military Occupational Specialty (MOS) was Infantryman. The Veteran’s service treatment records reflect that he was “routinely noise exposed” and there were indications of asymmetric hearing loss and damage during active duty service. Accordingly, VA has conceded noise exposure in this case. The Veteran’s post-service treatment records reflect a present diagnosis of tinnitus. In June 2013, the Veteran underwent a VA examination to assess the etiology of his tinnitus. The Veteran reported the onset of ringing in his ears bilaterally during active duty service. The examiner, however, determined that an opinion regarding the etiology of the Veteran’s tinnitus could not be made without resorting to mere speculation. The examiner noted that the Veteran’s reports of ringing in his ears beginning during active duty service were “important, however, the veteran is not competent to give the etiology.” The evidence of record reflects that the Veteran’s tinnitus began during active duty service, and continued after discharge. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Board concludes that the Veteran’s tinnitus was incurred in active duty service. It has been conceded that he was exposed to noise in service. The Veteran has consistently reported a ringing in his ears that began during active duty. The Veteran is competent to testify as to onset of a condition such a tinnitus, and did so repeatedly through the record. As such, the Board may place more probative weight on the Veteran’s statement regarding onset than the opinion of the VA examiner who could not render an opinion at all. As the evidence of record stands in relative equipoise, the benefit of the doubt is resolved in favor of the Veteran. Service connection for tinnitus is warranted. REMANDED The claim of entitlement to service connection for a left wrist disability is remanded. The claim of entitlement to service connection for a neck disability is remanded. The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to an initial compensable evaluation for patellofemoral syndrome of the left knee is remanded. REASONS FOR REMAND 1. The claim of entitlement to service connection for a left wrist disability is remanded. The Board cannot make a fully informed decision regarding the issue of entitlement to service connection for a left wrist disability as a medical examination has not been afforded to the Veteran. The Veteran contends that his left wrist disability, diagnosed in post-service records as carpal tunnel syndrome, is related to an in-service car accident that occurred in November 2005, prior to his discharge from service. His VA treatment records reflect a history of a pinched nerve in his neck that affected his left hand in May 2008, and subsequent complaints pertaining to his left hand and wrist. VA treatment records reflect a worsening of his left wrist and hand symptomatology, and associate the condition with a history of multiple car accidents and explosions during his combat tours. The Veteran’s statements, as well as his post-service treatment records, provide at least an indication that the left wrist disability is related to his active duty service. Accordingly, a VA examination is necessary on remand in order to obtain an etiological opinion regarding the Veteran’s left wrist disability. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). 2. The claim of entitlement to service connection for a neck disability is remanded. The Board cannot make a fully informed decision regarding the issue of entitlement to service connection for a neck disability as the VA examination of record is inadequate for adjudicative purposes. The Veteran contends that his neck injury began during active duty service. In July 2004, the Veteran suffered a neck injury during combat training. In November 2005, he was in a car accident that reportedly affected his neck. In the June 2013 VA examination, the Veteran reported daily pain in his neck since 2004 with more pain during movement. The examiner concluded that it was less likely that the Veteran’s chronic neck strain was related to active duty service as he did not have a chronic neck condition in active duty service, and his post-service records did not reflect treatment for a neck condition “immediately” after service. The examiner did not address the Veteran’s competent lay reports of ongoing symptomatology that began during active duty service and continued following his discharge. This continuity of symptomatology is certainly competent for the purposes of establishing a nexus with active duty service, and it must be addressed in an opinion regarding the etiology of the Veteran’s neck disability. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, a new examination is necessary on remand. 3. The claim of entitlement to service connection for bilateral hearing loss is remanded. The Board cannot make a fully informed decision regarding the issue of entitlement to service connection for bilateral hearing loss as the VA examination of record is inadequate for adjudicative purposes. The June 2013 audiology examination notes the Veteran’s in-service audiology reports, but does not provide a rationale to support the negative nexus opinion rendered. The examiner did not address the fluctuations in the Veteran’s in-service audiology reports that may indicate traumatic noise exposure, nor did the examiner remark on the Veteran’s in-service diagnoses of high frequency hearing loss and asymmetric hearing loss. Merely stating that the in-service audiograms were within normal limits is entirely insufficient to sustain an etiological opinion. Accordingly, a more thorough examination that considers a complete history as provided by the Veteran is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. The claim of entitlement to an initial compensable evaluation for patellofemoral syndrome of the left knee is remanded. In the Veteran’s February 2018 Appellate Brief, his attorney reported that the June 2013 examination assessing the severity of his knee disability is no longer representative of his current symptoms. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). In the present case, it has been over 5 years since the Veteran was last afforded a VA examination to determine the current severity of his left knee disability, and he has specifically asserted that his condition has worsened since this examination. Furthermore, the previous examination is not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), in that it fails to provide a thorough examination of the Veteran’s knees, including passive range of motion, and in weight bearing and non-weight bearing testing. As such, a new VA examination is warranted to more thoroughly assess the severity of the Veteran’s left knee disability. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination with a new clinician, if possible, to assess the present nature and severity of his left wrist, neck and left knee disabilities. A complete copy of the claims file must be made available to the examiner. The examiner must take a complete history from the Veteran regarding observable symptomatology associated with his claimed disabilities. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s neck had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include injuries in July 2004 and November 2005? Please consider and address as necessary the Veteran’s lay reports regarding ongoing symptomatology related to his neck. (b.) Please identify the current left wrist disability and address whether it is at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s left wrist disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include his in-service car accident? (c.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s left wrist disability was (i.) caused by or (ii.) aggravated by his neck disability? (d.) Please assess the present severity of the Veteran’s left knee disability, including any functional impairment caused by the condition. 1. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess OR ESTIMATE the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran's description of symptoms, what his range of motion would be on flare-up. 2. The examiner should record the results of range of motion (1) on BOTH active and passive motion, (2) in weight-bearing and non-weight-bearing, and (3) of the opposite undamaged joint (to the extent applicable/possible). If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. (e.) If possible, provide a retrospective opinion of its severity since October 2012. The examiner should also provide an assessment of the Veteran’s functional impairment in this period of time. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned development is complete, schedule the Veteran for a VA examination with a new clinician, if possible, to assess the present nature and severity of his bilateral hearing loss. A complete copy of the claims file must be made available to the examiner. Noise exposure has been conceded, and service connection is granted for tinnitus. The examiner must take a complete history from the Veteran regarding observable symptomatology associated with his hearing loss. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s bilateral hearing loss had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please consider and address as necessary the Veteran’s lay reports of associated symptomatology and the fact that service connection is in effect for tinnitus. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel