Citation Nr: 21004193 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-17 124 DATE: January 26, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back disorder to include back strain is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to May 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge. A transcript of the proceeding is of record. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are recognized by VA as a “chronic condition” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). 1. Entitlement to service connection for tinnitus is granted. The Veteran claims that his tinnitus is the result of acoustic trauma he experienced in-service. He filed his claim for VA compensation in January 2012. The Board finds that the Veteran currently has tinnitus. The August 2012 VA examination report includes a current diagnosis of recurrent tinnitus. In addition, the Board finds that the Veteran experienced noise exposure in-service based on his competent and credible testimony provided at his hearing of exposure to helicopter and truck noise for 22 months. The Veteran’s military records support his testimony that his military duties required exposure to helicopters and trucks. As such, the first two Shedden elements are met and are not in dispute. The issue, therefore, is whether there is a causal connection between the Veteran’s tinnitus and his in-service noise exposure. The Board finds the preponderance of the competent evidence supports the claim. The Veteran testified at the December 2020 hearing he experienced ringing in the ears during military service after noise exposure and that the ringing has continued to the present. The Veteran further testified that he did not have any problems with ringing in the ear before service. There is no indication that the Veteran’s credibility with regard to his reports of tinnitus symptomology should be challenged. The Board finds that the Veteran is competent and credible, and his testimony regarding tinnitus symptoms is afforded probative value. The August 2012 VA examiner diagnosed the Veteran with recurrent tinnitus. The examiner gave a negative nexus opinion that the tinnitus is related to military service. The examiner referenced the Veteran’s significant noise exposure but stated that there was no evidence found within the service medical record that tinnitus began during service. The Board affords this opinion low probative value due to the failure of the examiner to consider the Veteran’s credible reports of symptomology of tinnitus from military service to the present. These reports constitute evidence that tinnitus began during active duty. The August 2012 VA etiology opinion is not based on an accurate factual background. The Board affords significant probative value to the Veteran’s credible testimony of continuous tinnitus symptoms during and since active service. Lay evidence can be 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). Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds a preponderance of the probative evidence supports a grant of service connection for tinnitus. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back strain is remanded. The Veteran contends that his back strain is related to his active service. He filed his claim for VA compensation in January 2012. Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In August 2012, the Veteran was afforded a VA examination for his back conditions. The examiner diagnosed back strain. The Veteran reported chronic back pain. The examiner opined that the back condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner provided rationale stating that due to length of time and lack of nexus, any relationship of his current back condition to service is speculative. The Board finds this opinion is inadequate as it is based on the lack of objective evidence of back pain during and following service. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). The Veteran has competently and credibly testified that he experienced continuous pain and problems with his back since active service. He further credibly testified that he injured his back in-service. This evidence must be taken into account when forming the etiology opinion. As such, a remand is necessary for an addendum opinion to consider the lay evidence indicating in-service injury and continuity of symptomology. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. 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). 2. 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. 3. 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 any diagnosed back disorder present during the appeal period (January 2012 to the present) was incurred in 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. The examiner must specifically consider and discuss the Veteran’s credible reports of his in-service injury and continuity of symptomology since that time. The opinion and rationale must reflect such consideration. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for such a finding. 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 D. Hughes 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.