Citation Nr: 21002601 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-08 624 DATE: January 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbosacral strain is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a cervical strain is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a right lower extremity sciatic nerve disorder is remanded. FINDING OF FACT With resolution of doubt in his favor, the Veteran’s tinnitus was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served a period of active duty for training from February 1982 to May 1982 and a period of active duty from January 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA), Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. This case was previously before the Board in February 2020. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. Entitlement to service connection for tinnitus is granted. The Veteran contends that he has tinnitus that is related to in-service noise exposure, including exposure to noise from M60 machine guns. A service personnel record indicates the Veteran attended infantry school for 13 weeks in 1982, which corresponds with a period of active duty for training from February 1982 to May 1982 reported on a DD Form 214. A subsequent DD Form 214 indicates that the Veteran served in the infantry as a range safety officer on active duty from January 22, 1991 to March 26, 1991 in support of Operation Desert Storm. The Veteran’s reported citations included marksmanship badges for the M-16 rifle and grenade. The Veteran’s service treatment records and examinations from his period of active service have not yet been obtained. The Veteran was afforded a VA examination for his hearing loss and tinnitus in July 2016. The examiner reported that the Veteran experienced bilateral recurrent tinnitus. The Veteran reported that the onset of his tinnitus was twenty years ago. The examiner opined that the Veteran’s tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. However, in his rationale, the examiner addressed only the Veteran’s hearing loss and failed to address any other factors related to the Veteran’s tinnitus, including the Veteran’s lay statements and his duty position as a range officer during active service. Therefore, the Board affords no probative value to the examiner’s opinion, as the opinion and rationale provided by the examiner did not sufficiently analyze relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). At the Veteran’s November 2019 Board hearing, the Veteran testified that he experienced ringing in his ears from weapons noise on the firing range. He stated that the ringing would fade away and come back but he never sought treatment because he did not think it was serious. He testified that he was provided foam to stick in his ears, which was not effective in suppressing the noise. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating a tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). During his active service, the Veteran served in the infantry as a range safety officer, a duty position with a high probability of noise exposure. As the Veteran’s statements about in-service noise exposure are consistent with the circumstances of his service and because the Veteran is competent to relate a history of noise exposure during service, there is no reason to doubt the credibility of his statements regarding military noise exposure. Taking all reports into account, the Board concludes that the evidence is in relative equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral strain is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for a cervical strain is remanded. 4. Entitlement to service connection for PTSD is remanded. 5. Entitlement to service connection for a right lower extremity sciatic nerve disorder is remanded. In February 2020, the Board remanded the Veteran’s service connection claims for the Agency of Original Jurisdiction (AOJ) to obtain all outstanding service treatment records, to include the Veteran’s entrance and separation examinations for both terms of active duty. The Board notes that the duty status of the Veteran’s period of service in 1982 was active duty for training and not active duty. A June 1992 personnel qualification record reported that the Veteran’s last physical examination was in March 1991. The February 2020 Board remand directed that all efforts to obtain the outstanding service treatment records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. The record does not reflect that the AOJ made any additional attempts to obtain outstanding service treatment records or draft a formal finding of unavailability. Instead, in March 2020, the AOJ uploaded an October 2015 Personnel Information Exchange System (PIES) response that all available personnel records and service treatment records were shipped to the contracted scan vendor and uploaded. Moreover, the Veteran’s claims folder includes an incomplete PIES request for his National Guard records that was submitted on May 25, 2017. In failing to make any additional attempts to obtain outstanding service treatment records or draft a formal finding of unavailability, the AOJ has not complied with the Board’s February 2020 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Thus, the Board finds that a remand is warranted for the AOJ to make efforts to obtain outstanding service treatment records. The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran’s electronic claims file. 2. Obtain all outstanding service treatment records for the Veteran’s periods of active service and active duty for training, including his January 1991 entrance examination and March 1991 separation examination. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.