Citation Nr: 21003387 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-12 533 DATE: January 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB), claimed as a shaving condition is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1979 to December 1981 and March 1982 to September 1999. In November 2020, the Veteran testified at a Board hearing. The transcript is of record. In October 2018, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran’s claim of entitlement to service connection for bilateral plantar fasciitis, lumbosacral sprain, left knee strain and right knee strain were granted in a July 2020 rating decision. As such, these issues are no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. 1. Entitlement to service connection for tinnitus The Veteran contends exposure to acoustic trauma in service, as his duties consisted of being in engine rooms and on the flight deck of an aircraft carrier. He explained that the ringing started in service and continued ever since. For the following reasons, the Board finds that service connection for tinnitus is warranted. For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, to include tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b) (2017). The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, a current diagnosis of tinnitus is established. At the hearing, the Veteran testified that during service he was exposed to loud noises and machinery as his duties placed him in engine rooms of ships such as freighter and destroyers and on the flight deck of an aircraft carrier. His DD-214 confirms a military occupational specialty of interior communications electrician and service on various Naval ships, to include an aircraft carrier. The Veteran stated that the ringing in his ears started during active service and continued ever since. The Board finds the Veteran’s testimony competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology). Thus, exposure to acoustic trauma during active service is conceded. Lay evidence is competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran provided competent and credible testimony establishing continuous ringing in his ears since active service; therefore, the Board finds that tinnitus is etiologically related to the Veteran’s military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran failed to report to a VA examination for hearing loss scheduled for January 21, 2020. In a statement dated January 27, 2020 the Veteran explained that he missed his examination through no fault of his own as the VA overbooked his examinations and requested to reschedule the examination. The Board finds that good cause is shown, and a remand is necessary to schedule a VA examination for bilateral hearing loss. 2. Entitlement to service connection for PFB Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA examination for PFB in June 2013 and reported getting bumps on his face while shaving in service and continuing to have problems with shaving ever since. The examiner noted PFB on the neck and opined that it is less likely than not that PFB was caused by or a result of a skin condition that occurred during active duty. The examiner noted in-service treatment for tinea versicolor, acne keloidalis nuchae and PFB but stated that PFB was not chronic as it was a mild case with no recurring visits and was not reported on the separation examination dated August 17, 1999. The examiner concluded that PFB resolved in-service and it more likely developed in the ensuing years after separation from service. In January 2020 the examiner again opined that PFB and acne keloidalis nuchae are less likely than not casually related to service as the skin conditions are congenital as he was not exposed to chemicals or other environmental substances known to damage the skin. The Board finds the opinions are insufficient for adjudication as neither provided an adequate rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the examiner’s failed to address and consider the Veteran’s statements that his PFB began in-service due to shaving and continued ever since and relied on the absence of evidence without explaining the significance of such, a remand is necessary to obtain an addendum medical opinion. 3. Entitlement to service connection for PTSD In July 2020 the Regional Office (RO) issued a deferred rating decision for the issue of entitlement to service connection for PTSD citing the need for further development and a Supplemental Statement of the Case (SSOC) has not been issued. As such, a remand is necessary. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Conduct any other development deemed necessary and send the Veteran and his representative a supplemental statement of the case that addresses the issue of entitlement to service connection for PTSD. 4. Schedule the Veteran for an examination with a medical professional with appropriate expertise to determine the nature and etiology of bilateral hearing loss. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a review of the record and examination, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed hearing loss is related to active service or is caused by or aggravated by military service. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner should elicit a full medical history from the Veteran. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is advised that acoustic trauma in service is conceded and that 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that PFB and/or acne keloidalis nuchae is related to active service or is caused by or aggravated by military service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history related to PFB from in-service to the present. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that PFB and/or acne keloidalis nuchae is not related to service. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.