Citation Nr: 18154566 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 18-10 655 DATE: November 30, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a disability manifested by lower torso pain is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a chest condition characterized as residuals of left anterior chest trauma claimed as tightness of the upper chest is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for folliculitis claimed as lower torso rash/bumps is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. FINDING OF FACT The Veteran’s current tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from July 1992 to March 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay 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. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease 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. 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). 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he asserts is related to service. The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for tinnitus have been met. As noted, the Veteran served in the United States Marine Corps from July 1992 to March 2000. The Veteran’s DD-214 reflects that the Veteran’s military occupational specialty (MOS) was in logistics/embarkation specialist and field radio operator. The Board further notes that service treatment records reflect that from June 1992 through to June 1997 the Veteran was exposed to noise and ordinance in service and was provided protective equipment. Therefore, the Board concedes that the Veteran was exposed to hazardous noises. 38 U.S.C. § 1154(a). Service treatment records, are silent as to any complaints, treatment or clinical diagnosis for tinnitus. In March 2017 and February 2018 the Veteran credibly and competently stated that his condition had been persistent since service, but that he was unable to afford healthcare to receive treatment for his condition after service. The Veteran was afforded an VA examination in April 2016, which reflected a diagnosis of tinnitus. The Veteran reported that he served in the Marines for eight years from 1992 to 2000. He reported that he participated in combat activity, and he had a history of small arms firing in training. The Veteran also reported significant post-service noise exposure as a truck driver. The Veteran reported that he first noticed ringing about four years earlier, or about twenty-two years post-service, and it occurred in the left ear three times a month for an hour. The examiner opined that the Veteran had a diagnosis of clinical hearing loss and his tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Further, the examiner opined that the Veteran’s tinnitus was not at least as likely as not (50 percent or greater probability) incurred in or caused by in-service injury or event that occurred while on active duty as a field radio operator noting that the Veteran gave an onset date of four years earlier. The examiner noted that tinnitus does not have this sort of delayed onset. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for tinnitus have been met. As noted the Veteran has competently and credibly stated that his condition had been persistent since service, but that he was unable to afford healthcare to receive treatment for his condition after service. The Board finds that based on the tinnitus complaint recorded in his April 2016, VA audiological examination and his conceded noise exposure in-service the Veteran meets the first two requirements of service connection. Tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. The Veteran asserts he has experienced tinnitus during his time in service. He is competent to report his symptoms of tinnitus, such as ringing in the ears. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See 38 C.F.R. § 3.159(a)(2). Moreover, the Board finds the Veteran’s reports of in-service symptoms and a continuity of symptomatology since service to be credible. In this regard, the Veteran essentially contends that his tinnitus has been “chronic and continuous since discharge.” These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). Although the Veteran apparently gave a post-service date of onset at the VA examination, his other statements (that are consistent with each other and place the onset of tinnitus in service), at the least places the evidence in equipoise. Tinnitus, unlike hearing loss, is a disorder that is readily observable by laypersons, is subjective in nature, and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, while the Veteran’s service treatment records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began in service. 38 C.F.R. § 3.159(a)(2). Therefore, the Board finds that the Veteran’s competent and credible lay evidence as to in-service tinnitus and continuity of symptomatology is sufficient to support a claim for entitlement to service connection. Accordingly, the benefit-of-the-doubt doctrine is for application; the Board finds that the Veteran’s tinnitus began in service and has continued to the present day; service connection for tinnitus is warranted. REASONS FOR REMAND In March 2017 and February 2018 the Veteran stated that his claimed conditions had their onset in service and have been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a disability manifested by lower torso pain is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. July 1997 service treatment records reflect a diagnosis of cervical strain following a motor vehicle accident. The Veteran also complained of left shoulder pain and left lateral soreness. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence “indicates” that the Veteran’s disability “may” be associated with his service is a low threshold. Id. Thus, in light of the Veteran’s contentions and the record on appeal, VA examinations should be obtained to determine the probable etiology of the Veteran’s left shoulder condition, lower torso pain, cervical spine strain and lumbar spine condition to include whether the Veteran’s conditions, are related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. 5. Entitlement to service connection for a right foot condition is remanded. The Veteran was afforded a VA examination in October 2016, which reflected a diagnosis of bilateral pes planus, right foot metatarsalgia, right foot plantar fasciitis, and right foot calcaneal spur. The examiner did not provide an opinion regarding the etiology of the Veteran’s right foot condition. Therefore, the Board finds that a supplemental VA opinion is required to determine the etiology of the Veteran’s right foot condition. 6. Entitlement to service connection for a chest condition is remanded. July 1992 service treatment records reflect a diagnosis of contusion to chest. The Veteran reported he sustained trauma to his left anterior chest. In light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s chest condition, to include whether the Veteran’s claimed disability, is related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. 7. Entitlement to service connection for bilateral hearing loss The Veteran was afforded a VA examination in April 2016, which reflected a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran had left ear hearing loss, which pre-existed service, and opined that the Veteran’s pre-existing left ear hearing loss was less likely than not aggravated beyond normal progression while in service. The examiner noted that the Veteran had mild left ear hearing loss at 6000 Hz. It is unclear which standard the examiner used in determining whether the Veteran had hearing loss which preexisted service. The Board notes that for VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Regarding claims to service connection for hearing loss, in McKinney v. McDonald, 28 Vet. App. 15 (2016), the Court held that because the degree of hearing loss noted on an appellant’s entrance examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the appellant was entitled to the presumption of soundness under 38 U.S.C. § 1111. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran’s bilateral sensorineural hearing loss. 8. Entitlement to service connection for folliculitis is remanded. An August 1992 service treatment record reflects a diagnosis of most likely local isolated folliculitis, and an April 1996 service treatment record reflects a diagnosis of urticaria. In light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s folliculitis, to include whether the Veteran’s claimed disability, is related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. 9. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. The Veteran’s claim of service connection for radiculopathy of the right lower extremity is inextricably intertwined with his claim of service connection for cervical spine strain and a lumbar spine condition. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, action on the Veteran’s claim of service connection for radiculopathy of the right lower extremity is deferred pending additional development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s left shoulder disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that a current left shoulder condition manifested during service or is otherwise causally or etiologically related to service. The examiner should consider and discuss the following: (a.) July 1997 service treatment records, which reflect that the Veteran complained of left shoulder pain following a motor vehicle accident; (b.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s lower torso pain. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should identify any underlying disability manifested by lower torso pain; if there is no actual diagnosable disability, indicate whether there is evidence of lower torso pain that results in functional impairment of earning capacity. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that a current disability manifested by lower torso pain (including in the absence of an actual diagnosed underlying disability) manifested during service or is otherwise causally or etiologically related to service. The examiner should consider and discuss the following: (a.) July 1997 service treatment records, which reflect that the Veteran complained of left lateral soreness following a motor vehicle accident. (b.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s cervical spine disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following whether it is at least as likely as not (50 percent or greater likelihood) that a current cervical spine condition manifested during service or is otherwise causally or etiologically related to service. The examiner should consider and discuss the following: (a.) July 1997 service treatment records, which reflect a diagnosis of cervical strain following a motor vehicle accident. (b.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s lumbar spine disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following whether it is at least as likely as not (50 percent or greater likelihood) that a current lumbar spine disability manifested during service or is otherwise causally or etiologically related to a service. The examiner should consider and discuss the following: (a.) July 1997 service treatment records, which reflect that the Veteran was involved in a motor vehicle accident. (b.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 5. Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s right foot disability. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. The examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that a current foot disability manifested during, is otherwise causally or etiologically related to a period of active duty service; (b.) whether it is at least as likely as not (50 percent or greater likelihood) that any current foot condition is proximately due to a service-connected disability to include right distal first metatarsal medial avulsive chip fracture; (c.) whether it is at least as likely as not (50 percent or greater likelihood) that any current foot condition is aggravated (non-temporary increase in severity beyond the natural progression of the disorder) by a service-connected disability to include right distal first metatarsal medial avulsive chip fracture. The examiner should consider and discuss the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 6. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s chest condition. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following whether it is at least as likely as not (50 percent or greater likelihood) that a current chest condition manifested during service or is otherwise causally or etiologically related to service. The examiner should consider and discuss the following: (a.) July 1992 service treatment records, which reflect a diagnosis of contusion to chest; (b.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 7. Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s bilateral sensorineural hearing loss. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. (a.) The examiner should address whether a hearing loss disability, for VA purposes, clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran’s period of active service from July 1992 to March 2000. The examiner should explain the basis for this opinion with consideration of the provisions of 38 C.F.R. § 3.385 and Hensley v. Brown, 5 Vet. App. 155 (1993) ((noting, in pertinent part, that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385). In making this determination, the examiner is requested to consider the Veteran’s medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disorder, and lay and medical evidence concerning the inception, development and manifestations of the disorder. The examiner must outline the specific evidence in the record supporting this opinion. (b.) If the examiner determines that there is clear and unmistakable evidence that the Veteran had a hearing loss disability which preexisted active duty service, is there clear and unmistakable evidence that the preexisting hearing loss disability was NOT aggravated in service beyond the natural progression of such disorder during such service; (c.) If there is no clear and unmistakable evidence that the Veteran had a hearing loss disability that preexisted active duty service and was not aggravated in active duty service, then opine as to whether it is at least as likely as not (50 percent or greater likelihood) that any current hearing loss disability manifested during active duty service, that sensorineural hearing loss was manifest to a compensable degree within one year of active duty service, or that it, is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 8. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s folliculitis. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following whether it is at least as likely as not (50 percent or greater likelihood) that a current skin condition manifested during service or is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the following: (a.) an August 1992 service treatment record, which reflects a diagnosis of local isolated folliculitis; (b.) an April 1996 service treatment record, which reflects a diagnosis of urticaria; (c.) the Veteran’s March 2017 and February 2018 statements that his conditions had been persistent since service, but that he was unable to afford healthcare to receive treatment for his conditions after service. In rendering the opinions, the examiner should consider the Veteran’s statements to be competent and credible. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel