Citation Nr: 21067560 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-03 928 DATE: November 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a rating greater than 10 percent for right ankle arthritis is remanded. Entitlement to service connection for a hernia disability is remanded. FINDING OF FACT The Veteran's tinnitus is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1984 to May 1985. He also had additional service in the Army National Guard with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board further notes that initially on appeal, as well, was the issue of service connection for metal in neck; however, this claim was granted in a November 2016 rating decision. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In an October 2021 written correspondence, the Veteran withdrew his request for a hearing before a Veterans Law Judge. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is a result of active duty service. Specifically, in his VA Form 9, he reported having noise exposure in service from shooting his M16 during active duty for training. He explained that he had trainings twice a month and that his ears were affected then as well as now. However, in his April 2015 VA audiology examination, the examiner found that the Veteran's tinnitus is less likely related to service since there were no changes in hearing attributable to noise from a specific episode or period of exposure. The examiner further noted that there is no diagnosis or complaint of tinnitus while on active duty. After having considered the evidence, the Board finds that service connection for tinnitus is warranted. The Board initially notes that the examiner relied on the absence of treatment or a diagnosis in service, which does not preclude service connection. Additionally, before rendering the medical opinion, the examiner was not able to review all of the Veteran's treatment records given that service treatment records (STRs) from the National Guard appear to be outstanding. Importantly, the Veteran may be service connected for a disorder if it is shown that the disorder had its onset or was aggravated during a period of ACDUTRA or is related to an injury incurred during a period of INACDUTRA. Moreover, the Board notes 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). Additionally, the Veteran, as a lay person, is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran reported having noise exposure in service due to shooting M16 during periods of ACDUTRA. He further reported experiencing tinnitus while in service and presently. The Board finds the Veteran's statements are credible as they are consistent with the circumstances of his service given his nearly 18 years of service in the National Guard. In addition, the Veteran reported having no noise exposure after service while employed as an auto mechanic and security guard, and he denied recreational noise exposure. Moreover, in his April 2015 audiology examination, the Veteran reported periodic tinnitus that started a couple of years ago, which would coincide with the end of the Veteran's service in the National Guard or shortly thereafter. Accordingly, the Board finds that the preponderance of evidence is in favor of the claim. Thus, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for right ankle arthritis. In his VA Form 9, the Veteran reported that he takes a narcotic medication daily for his ankle and that the pain has worsened over the years. In this regard, the Board notes that VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). As the Veteran has contended that his right ankle has worsened; and given that his last VA examination was over six years ago, a remand is warranted to provide him with a more contemporaneous examination. 2. Entitlement to service connection for a hernia disability is remanded. In his VA Form 9, the Veteran reported that during one of his weekend trainings in the National Guard, he was treated for a hernia disability at the VAMC in East Orange, NJ. The Board notes that VA treatment records are silent for treatment or a diagnosis for a hernia. However, the Veteran's STRs from the National Guard appear to be outstanding. The record shows that in a May 2016 Duty to Assist Letter, VA advised the Veteran that his STRs were being requested; however, June 2016 and July 2016 correspondence shows that VA merely requested the Veteran's personnel records regarding INACDUTRA training dates from October 1990 to December 1990. As noted above, the Veteran had National Guard Service from 1984 to 2011; therefore, all STRs for the complete period are relevant and should have been obtained. As such, remand is warranted to obtain the Veteran's outstanding STRs. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records and associate them with the claims folder. 2. Attempt to obtain any outstanding service treatment records and military personnel records for the Veteran's National Guard service, to include all periods of active duty, ACDUTRA, and INACDUTRA. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. Efforts to obtain these records must continue until it is reasonably certain that they do not exist or that further efforts would be futile. 3. Schedule the Veteran for a VA examination with a qualified clinician to determine the current severity of the Veteran's right ankle disability. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and non-weightbearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). Additionally, the examiner must document all functional loss of the right ankle. In assessing functional loss, flare-ups must be considered, and the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. degrees of limitation of motion. (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. The RO should further develop the claims as necessary, to include providing VA examinations, and ensure that the examination reports comply with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.