Citation Nr: 21064327 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-28 883A DATE: October 19, 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 a back disability is remanded. Entitlement to service connection for residuals of frostbite, bilateral hands is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1991 to March 1994. 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). Service Connection 1. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Veteran seeks service connection for tinnitus, which he asserts began during service due to hazardous noise exposure from artillery fire countless times due to duties of his military occupational specialty (MOS) as an infantryman and that it hs been recurrent since that time. See November 2016 Notice of Disagreement (NOD) and June 2017 VA Form 9. Here, the July 2016 VA examination report reflects a diagnosis of tinnitus. Thus, the first element of service connection is established. Regarding the second element of service connection, while the Veteran's service treatment records (STRs) are silent for tinnitus complaints, they do contain notation that he was routinely exposed to hazardous noise (see August 1992 STR). The Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his service while performing exercises as an infantryman (see 38 U.S.C. § 1154(a)), and as detailed below, his report of an in-service incurrence of tinnitus is credible. Thus, the second element is also met. Regarding nexus, the Board has conceded acoustic trauma due to duties of his MOS as an infantryman which is associated with high levels of noise exposure and is confirmed in this regard in his STRs as noted above. Additionally, he has competently and credibly reported that he first experienced tinnitus during service as a result and continued to experience tinnitus since that time. See July 2016 VA examination report, November 2016 NOD, and June 2017 VA Form 9. The Board acknowledges the July 2016 VA examiner rendered an opinion unfavorable to the Veteran's tinnitus claim. However, the examiner relied on lack of tinnitus complaints in the Veteran's STRs and intertwined reasoning for hearing loss and tinnitus claims and attributed his tinnitus to his hearing loss, and did not address the Veteran's competent reports of the onset of tinnitus during service due to duties of his MOS. Critically, tinnitus is capable of lay observation, and the Board finds the Veteran's report of an in-service onset of tinnitus credible. Moreover, as a chronic disability (organic disease of the nervous system) under 3.309(a), service connection is permissible solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Accordingly, element three of service connection is met, and service connection for tinnitus is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA hearing loss and tinnitus examination in July 2016. The examiners' findings did not reveal a hearing loss disability for either ear for VA purposes. However, in his June 2017 VA Form 9, the Veteran expressed concerns regarding the sufficiency of the examination surrounding the lack of instructions given and questions asked during the examination which the Veteran's representative highlighted in an August 2021 Appellate Brief. Moreover, his hearing has not been tested since that time and could have progressively worsened. Thus, on remand a new VA examination is warranted from a different examiner. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for residuals of frostbite, bilateral hands is remanded. The Veteran asserts that his back disability was incurred during service due to an initial injury when he injured his back and knees in a helicopter crash and was worsened by the cumulative impact of ruck marches and compression on helicopter flights while carrying a heavy load of between 150 and 185 pounds of gear on his back. See November 2016 VA Form 21-4138 and June 2017 VA Form 9. To this end, he maintains that he developed back problems, including pain, as a result and that his pain has continued since that time. The Veteran was afforded a VA back examination in July 2016. However, the examiner's opinion is inadequate as it relied on lack of remarkable STRS when rendering negative opinion and failed to address the Veteran's lay statements regarding the onset of his back pain during service due to his initial injury and then the cumulative impact of carrying a heavy load on his back and his continuous back pain since that time. Thus, on remand an addendum opinion is warranted that adequately addresses this issue. Any outstanding treatment records should also be secured. In this regard, as the evidence of record does not reveal a current diagnosis for any residuals of frostbite in the bilateral hands, action on this claim is deferred pending this development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination with a different examiner other than the July 2016 VA examiner to determine the current nature and severity of his bilateral hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail. (a) Determine whether the Veteran has hearing loss in either ear for VA purposes. (b) If the Veteran has hearing loss in one or both ears for VA purposes, then the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to service. In addressing this question, the examiner must discuss: (i) the Veteran's conceded in-service noise injury due to hazardous noise exposure from duties of his MOS (See November 2016 NOD and June 2017 VA Form 9. (ii) whether the Veteran's conceded in-service noise injury resulted in delayed-onset hearing loss, and if you rely on the IOM study, please address the 2006 IOM statement that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed;" (iii) the Veteran's assertions, which you are to assume are true, that his current bilateral hearing loss had its onset during his active duty service and continued from his active duty service to the present. See November 2016 NOD and June 2017 VA Form 9. The examiner must assume this statement as true, even despite the absence of "objective documentation." (iv) Please state whether a nexus between the Veteran's bilateral hearing loss and service is medically consistent with the symptomatology reported by the Veteran in sub-part (b)(iii) above and note that the Veteran is service connected for tinnitus. Otherwise, the opinion will be returned as inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then obtain an addendum opinion from a VA examiner other than July 2016 VA examiner to determine the nature and etiology of his back disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. (Continued on the next page) For diagnosed (i) lumbosacral strain (ii) degenerative arthritis of the spine (iii) intervertebral disc syndrome and (iv) scoliosis (see July 2016 VA examination report), please opine whether it is at least likely as not (50 percent or greater probability) that such disability had its onset during service or is otherwise related to service, to include as a result of a helicopter crash and/or the cumulative impact of ruck marches and compression on helicopter flights while carrying a heavy load between 150 and 185 pounds on his back. See November 2016 VA Form 21-4138 and June 2017 VA Form 9. In addressing this question, please assume as true and comment on the Veteran's lay statements that he has experienced continuous back problems since that time and determine whether a nexus to service is "medically plausible" based on the same. See November 2016 VA Form 21-4138 and June 2017 VA Form 9. Please also comment on the Veterans STRs which document back pain complaints and determine whether a nexus to service is medically consistent with the same. See June 1993 STR. A complete rationale should be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.