Citation Nr: 21067052 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-01 554 DATE: November 3, 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 lumbar spine disability is remanded. Entitlement to service connection for a bilateral eye disability is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the probative, competent, and persuasive evidence of record shows that it is at least as likely as not that the Veteran has continuously had symptoms of tinnitus since service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1137, 5107; 38 C.F.R. § § 3.102, 3.303, 3.307, 3.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to service connection for tinnitus. The Veteran contends that currently diagnosed tinnitus is the result of noise exposure during active service. Specifically, the Veteran claims that he was exposed to acoustic noise trauma as a result of exposure to mortar and gunfire noise while in service. The Veteran claims that as a result of that noise exposure he began experiencing ringing in the ears during active service, which has continued to the present. The service personnel records show that the Veteran was an infantry indirect fire crewman while in service. That Military Occupational Specialty (MOS) has a high probability for noise exposure. The Veteran also earned a Rifle M-16 expert badge. A review of the competent evidence of record shows the Veteran has credibly reported symptoms of tinnitus continuously since service. Therefore, the Board finds that tinnitus can be service-connected based on a credibly reported continuity of symptomatology. Therefore, the claim for service connection for tinnitus is granted. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a relationship between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. With chronic disease shown as such in-service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Tinnitus, as an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. § 3.309(a), and continuity of symptomatology since service may establish relationship to service. 38 C.F.R. § 3.303(b). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the Veteran, as a lay person, is both credible and competent to provide evidence of the existence of the medical condition of tinnitus, as it comes to him through his senses of ringing in the ears, and he is competent to attest that it has been continuous since active service. Specifically, the Board finds that tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialized medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A lay person, such as the Veteran, may competently state that he perceives ringing in the ears. The Veteran may also competently state when that condition started and if it has continued to the present. The Veteran has consistently asserted that he began experience ringing in the ears during service as a result of loud noise conditions while in-service. The Board finds that the Veteran was likely consistently exposed to loud noise while working as an infantry indirect fire crewman while on active duty service, upon review of the service personnel records. The Board finds the Veteran's lay statements regarding the continuity of tinnitus symptoms to be credible. The Board notes that the Veteran has consistently noted that the ringing in the ears began during service and that those symptoms have continued to the present. The Veteran provided those contentions in written statements to VA, during VA examination, and in testimony to the Board. The Board finds the Veteran credible with regard to the assertions of continuity of tinnitus symptomatology since service. The Board acknowledges that there may be medical evidence of record contrary to the Board's findings. However, the Board assigns substantial probative weight to the Veteran's lay statements of record because the Veteran, as a layperson, may competently state that he perceives ringing in his ears and when that condition began. The Board finds that the evidence is at least in equipoise as the favorable and unfavorable evidence has approximately equal evidentiary weight. Accordingly, based on the evidence and arguments presented, the Board finds that the Veteran's tinnitus was at least as likely as not present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran's lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection for tinnitus is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for bilateral hearing loss. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that bilateral hearing loss disability is the result of noise exposure in service. Noise exposure in service has been conceded by VA based on the Veteran's MOS. At an April 2015 VA examination, the examiner found that it was not at least as likely as not (50 percent probability or greater) that bilateral hearing loss was caused by or the result of an event in service. The examiner explained that, the Veteran's served in the Army for two years from 1970 to 1972, and he reported his specialty was mortars. His MOS was listed as infantry indirect fire crewman on the service separation from, which has a high probability for noise exposure. Reported military noise exposure included mortars, being in a tank unit, the firing range with tanks and artillery, with some reported use of hearing protection devices, only during basic training. The Veteran reported he was around constant range noise while in the service. Occupational noise exposure included carpentry work, but he reported this work was not loud. Recreational noise exposure was denied. However, clinical examination from 2014 indicated that Veteran reported woodworking, yard tools, and motorcycles in his noise exposure history. The entrance examination from 1970, including an audiometric tracing from 1970 that showed all test frequencies, indicated normal hearing in both ears. The separation examination from 1972 indicated normal hearing in both ears. An audiometric tracing from 1973 indicated normal hearing in both ears. No significant threshold shifts were noted when comparing the service examinations. Therefore, there was no objective evidence to support a claim of service-related noise injury. Also, available the service medical records did not show any complaint, diagnosis, or treatment of claimed condition. In regard to the possibility of delayed onset hearing loss, the Institute of Medicine (IOM) (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. Based on the objective evidence, there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the service, including noise exposure. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. A lack of medical evidence in-service treatment records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim). As the April 2015 VA examiner relied solely on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated hearing disability, the opinion is incomplete. Thus, remand is necessary for an adequate etiology opinion regarding bilateral hearing loss. Importantly, the Board notes that VA attention has been directed to a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss. While the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs, that statement does not indicate the full extent of the report's findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). Therefore, the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). 2. Entitlement to service connection for a lumbar spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a lumbar spine disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran asserts that a currently diagnosed back disability began in service and continues to the present. Specifically, the Veteran contends that the disability began after he attempted to catch a falling mortar base plate. The Veteran also contends that he complained of back pain in service on December 12, 1970. However, the only service medical record currently in the record from that date concerns a sore throat and headache. A June 1972 service separation examination found no abnormal findings. The separation examination specifically notes the Veteran as having normal spine, lower extremity, and neurologic examinations. The Veteran explicitly stated he had no physical defects during the separation examination. At an April 2015 VA examination, after review of the claims file and in-person examination, the examiner diagnosed degenerative arthritis of the spine. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner reasoned that there was a lack of documentation necessary to support the claim. The Board finds the April 2015 VA examination to be incomplete. An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the April 2015 examiner relied on the absence of chronic symptoms or treatment in service for the negative opinion concerning the demonstrated disability, the Board finds the April 2015 VA examination to be incomplete. The VA examiner does not appear to have considered the Veteran's contentions regarding the back condition, as that was not addressed in the rationale. The VA examiners appear to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that a back disability was related to his service, the Board finds the April 2015 VA examination report to be incomplete. During the April 2015 examination, the examiner did not provide an opinion as to functional loss after repeated use over time without resorting to speculation. The examiner stated that he was unable to do so because he did not witness the repeated use over time. An opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). T hus, the April 2015 examination is also inadequate in that regard. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the Veteran's claimed lumbar spine disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran's lumbar spine disability should be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 3. Entitlement to service connection for a bilateral eye disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a bilateral eye disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Veteran asserts that service connection for a bilateral eye disability is warranted as a direct result of exposure to light flashes from weapons firing while on active duty. The Veteran's November 1970 entrance examination notes the Veteran as having defective vision. A March 2015 VA eye examination diagnosed pseudophakia and macular degeneration. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that the Veteran stated that he had a flash injury to the eyes four to five times during active service, yet the claim files showed no treatment was sought. The Veteran stated that his vision returned to normal after about five minutes so he never sought medical attention. The examiner stated that one could therefore reasonably conclude no permanent damage. Furthermore, a brief bright light that is incoherent (non-laser) broad spectrum and/or near-infrared may cause temporary visual impairment only for a few minutes, unlike a coherent light laser weapon or nuclear blast intensity that can cause permanent impairment. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the March 2015 examination to be incomplete as it appears the examiner applied an incorrect standard for a pre-existing condition. When a Veteran is found to have a pre-existing condition, the examiner must opine whether there is clear and unmistakable evidence that the disability did not increase in severity beyond the natural progression of the disease during service. Here, the Veteran was found to have defective vision upon entrance to service, but the examiner did not address whether the pre-existing condition was clearly and unmistakable not aggravated by service, or whether there was any superimposed injury of the eye. Because the March 2015 examiner did not apply the correct standard, a pre-decisional duty to assist error occurred. Thus, Remand is necessary for an adequate etiology opinion regarding the current bilateral eye conditions and service. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of this claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Then, schedule the Veteran for a VA audiology examination, with an examiner who has not previously examined the Veteran, to diagnose and obtain an opinion regarding the etiology of any right or left ear hearing loss disability. The examiner must review the claims file, to include this Remand in its entirety; the Veteran's lay statements, including hearing testimony, concerning in-service noise exposure and hearing loss symptoms during and since service; the previous VA examination; and the IOM report concerning an individual's delayed awareness on the effects on hearing from noise, and the onset of current symptomatology, and should indicate review of the file in the examination report. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any portion of the Veteran's hearing loss is etiologically related to active service or any event, disease, or injury during service, including whether any hearing disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include tinnitus, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include tinnitus. The examiner is advised that VA has conceded in-service noise exposure. The examiner is further advised that the Veteran is competent to report his symptoms during and since service and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based on the lack of any in-service records of hearing loss. (Continued on the next page) 3. Schedule the Veteran for a VA spine examination, with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any low back disability. The examiner must review the claims file, including this Remand and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner should diagnose all low back disabilities found or shown in the record during the pendency of the claim. The examiner should reconcile the diagnosis with the previous evidence of record. For each back disability diagnosed, to include pain resulting in functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each back disability is etiologically related to active service or any event, disease, or injury during service, including whether any back disability (1) began during active service, (2) manifested as back arthritis within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should cite to any evidence to support a finding of back arthritis within one year following separation from service. The examiner should address the Veteran's lay statements regarding the claimed disabilities and their etiology and symptoms during and since service. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. In writing the report, the examiner should refer to any service medical records indicating in-service treatment for any of the claimed disabilities, if any. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed bilateral eye disability. The examiner must review the claims file, including this Remand and the Board's July 2021 Board Hearing, and should note that review in the report. The examiner should address the lay statements of record regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to diagnose any and all eye disabilities that occurred during the pendency of this appeal. If an eye disability is diagnosed, the examiner should provide the following opinions, based on the record: (a) Did an eye disability clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion and state what left and/or right eye disability clearly and unmistakably pre-existed entrance to service. (b) If an eye disability is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting eye disability was not aggravated (worsened beyond the natural progress of the disease) during service. (c) The examiner should opine whether there was any superimposed injury in service that caused an increase in any preexisting eye disability. (d) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any visual loss or disability or cataract in the eye is related to service or any incident in service. (e) For any eye disability that is found to not clearly and unmistakably have preexisted entrance to active service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the eye disability is etiologically related to active service or any event, disease, or injury during service. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.