Citation Nr: 20021920 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-47 398 DATE: March 27, 2020 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to an evaluation in excess of 30 percent for a service-connected adjustment disorder with anxiety, is remanded. Entitlement to an evaluation in excess of 10 percent for a service-connected back disability is remanded. Entitlement to service connection for a left leg disability, claimed as secondary to a service-connected back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Tinnitus originally manifested during service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 2013 to June 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. Regarding the claim for service connection for tinnitus, neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Service Connection for Tinnitus. The Veteran contends that service connection is warranted for tinnitus. After review of the evidence, both lay and medical, the Board agrees and finds that service connection for tinnitus is granted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). A July 2017 VA examiner diagnosed the Veteran with tinnitus. Thus, the Veteran has a current disability. The Veteran’s service treatment records are silent for any reports of, or treatment for, tinnitus. In July 2017, the Veteran underwent a VA examination to determine the etiology of any tinnitus. The Veteran reported tinnitus that began 3 years prior and that he did not remember any specific incident of onset. The VA examiner diagnosed the Veteran with tinnitus but opined that it was less likely than not caused by his military service. The rationale provided was that based on current treatise evidence there is no scientific basis for delayed-onset hearing loss. During the November 20019 Board hearing, the Veteran reported that the tinnitus began during service. He further indicated noise exposure from aircraft. The Veteran is competent to report that tinnitus was incurred in service and that it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current bilateral hearing loss and tinnitus. However, the competent evidence as to the etiology of the Veteran's tinnitus is in conflict. While the VA examination report concluded that the Veteran's tinnitus was not related to service, the Veteran has explained that the tinnitus actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The Remaining Claims are Remanded. The appeal contains claims for increased evaluations for a service-connected acquired psychiatric disorder and lumbar spine disability, as well as, service connection claims for a left leg disability, claimed as secondary to the service-connected back disability, and bilateral hearing loss. After review of the medical and lay evidence, a remand is required to ensure a complete record that allows for a fully informed decision. During the November 2019 Board hearing, the Veteran reported that the symptoms of both the service-connected adjustment disorder and back disability had worsened. The Board notes that the Veteran last underwent a VA examination for the service-connected adjustment disorder in July 2017 and the service-connected back in June 2018. While the passage of time alone does not warrant a new examination, given the Veteran's complaints of worsening for the service-connected adjustment disorder and back disabilities, the Board finds that current examinations are necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, in a July 2017 rating decision, the AOJ denied service connection for a left leg disability on a direct basis. However, during the November 2019 Board hearing, the Veteran clarified that the claim was secondary to his service-connected back disability. To date, the Veteran has not been provided a VA examination to determine whether any left leg disability was caused or aggravated by the service-connected back disability, as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Finally, the Veteran contends he has a bilateral hearing loss disability as a result of noise exposure during service. Service treatment records show the Veteran was in the hearing conservation program. In July 2017, the Veteran underwent a VA audiology examination that did not show hearing loss for VA purposes. However, the VA examiner indicated the Veteran’s separation examination was not in the claims file. The Board notes since that examination, the Veteran’s separation examination has been associated with the claim file. As such, a new examination is necessary. Barr, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records since May 2018 with the electronic claims file. 2. After any records requested above have been obtained, schedule the Veteran for a VA psychiatric examination to assess the current severity of the service-connected adjustment disorder. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. 3. Schedule the Veteran for a VA examination to determine the current severity of the service-connected back disability. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's back disability has upon his ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected back disability. Additionally, the examiner is asked to answer the following: a) Does the Veteran have a currently diagnosed left leg disability, including any neurological disabilities? If yes, is it as likely as not that this disability was incurred in, or due to the Veteran's active military service? b) In the alternative, is it at least as likely as not (50 percent probability or greater) that any left leg disability, including any neurological disabilities are caused by any of the Veteran's service-connected disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any left leg disability, including any neurological disabilities are aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities? If the VA examiner opines that any left leg disability is aggravated by the Veteran's service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. 4. Schedule the Veteran for a VA audiology examination. After reviewing the claims file, the VA examiner should offer the following opinions: Is it at least as likely as not (50 percent or greater probability) that the any current hearing loss had onset in service, is otherwise related to his active service, or had its onset within one year of separation from service? In rendering the opinions requested above, the VA examiner should assume, as fact, that the Veteran was exposed to loud noises in service and must address any in-service shifts in hearing. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, Associate Counsel 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.