Citation Nr: 18155129 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-44 793 DATE: December 4, 2018 ORDER Service connection for tinnitus is granted. REMANDED Service connection for a right shoulder disorder is remanded. A rating in excess of 10 percent for lumbosacral strain is remanded.   FINDING OF FACT The Veteran currently has tinnitus, which had its onset during service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from October 1991 to April 2012. This case comes to the Board from a December 2015 rating decision. The Veteran limited his appeal to the three issues noted above. Service connection for tinnitus. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).   Analysis The Veteran maintains that he has tinnitus as a result of service. In his March 2016 notice of disagreement (NOD), he stated that he experiences a whistling/buzzing sound in both ears due to operating heavy equipment on a constant basis during service. In his September 2016 VA Form 9, the Veteran maintained that he still hears this sound in his ears. Noise exposure during service is established, as reflected by the Veteran’s service-connected hearing loss. In addition, and although private treatment records in December 2015 note no ringing in the ears in December 2013, and no tinnitus was noted on VA examination in April 2013, the Veteran’s service treatment records (STRs) document tinnitus in August 1991, with a feeling of fullness in the ears noted in September 2001 along with inner ear pain in December 2008. The Veteran is competent to identify tinnitus, as such condition is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, tinnitus is considered an organic disease of the nervous system subject to the presumptive service connection provisions of 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). Because tinnitus manifested during service, evidence showing that the veteran has the chronic disease in service and that he still has the same chronic disease warrants service connection absent any intercurrent cause. See Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed. Cir. 2008). Although there is some question as to whether the Veteran has tinnitus, when resolving reasonable doubt in his favor, the Board finds that the current disability element of the claim is established. See 38 U.S.C. § 510(b); 38 C.F.R. § 3.102. As tinnitus is shown in service, for which the Veteran served over 20 years, and there is no indication of an intercurrent cause between his separation of service and his claim three years later, the Board also finds that the Veteran’s tinnitus had its onset during service. Therefore, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Service connection for a right shoulder disorder. The Veteran maintains that his current right shoulder disorder is a result of injuries sustained during service. In his March 2016 NOD, he stated that he injured his right shoulder while skiing during service in 1994. In addition, he noted reinjuring the right shoulder during a drill when he fell down a ladder in approximately the summer of 2009, for which he was prescribed an arm sling for four weeks, and that he has had right shoulder symptoms, to include decreased strength, ever since. The Veteran’s STRs note an injury to the right shoulder while skiing in January 1994. X-ray examination of the right shoulder to rule out a fracture was noted to be negative, and the assessment was strain and contraction of the right shoulder. In addition, on a June 2006 dental questionnaire, the Veteran indicated that he had or had had painful joints. Further, the January 2012 separation examination report notes shoulder symptoms included pain and popping. The Veteran has not yet been afforded a VA examination for this claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), one is warranted since there is at least an indication that the Veteran has a current disorder, or symptoms thereof, that may be related to an in-service injury. Opinions regarding the etiology of the disorder will also be requested. 2. A rating in excess of 10 percent for lumbosacral strain. The Veteran maintains that his back disability is worse than reflected in the 10 percent rating and worse since the November 2015 VA examination. In addition, in a June 2018 submission, it was noted that on the day of the VA examination, he had a lower level of back pain than usual, and that some days his back pain is so severe that he is unable to tie his own shoes, and that it interfered with his job. Although the November 2015 VA examination report notes flare-ups, the opinion regarding why an opinion as to additional functional loss during flare-ups could not be provided is not completely adequate. Thus, the Board finds that a remand is warranted per the decision of Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). The Veteran should be scheduled for a new VA examination to assess the severity of the service-connected disability, to include complying with Sharp and Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional in connection with his right shoulder claim. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a right shoulder disorder had its onset during, or is otherwise related to his active service, to include a skiing injury in 1994 or falling off a ladder in 2009. A rationale for all opinions expressed should be provided. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected lumbosacral strain. This should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. If there are flare-ups, but if the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. If this cannot be accomplished, it should be explained why this is so. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor