Citation Nr: 21070222 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-02 771 DATE: November 23, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1975 to July 1978 and in the United States Army from February 2006 to January 2007 with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). In February 2020, the Veteran testified at a video conference hearing before the undersigned. The Board remanded these claims in April 2020. 1. Entitlement to service connection for tinnitus is remanded. The Veteran's tinnitus claim was remanded in April 2020 as inextricably intertwined with her posttraumatic stress disorder (PTSD) claim as a February 2015 VA examiner had listed stress and anxiety as one of the known causes of tinnitus. Subsequent to the Board's remand, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD with major depressive disorder (MDD) in a June 2021 rating decision. Despite this grant of service connection, the AOJ did not obtain an opinion on whether the Veteran's tinnitus was caused or aggravated by his now service-connected PTSD with MDD. As such, the tinnitus claim must be remanded for such an opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's representative submitted a brief in September 2021. September 2021, Written Brief Presentation. In his brief, the representative referenced medical literature indicating that excessive noise exposure could cause tinnitus that waxes and wanes and that there is a correlation between tinnitus and psychiatric disorders. The examiner must address these articles in their opinion. 2. Entitlement to service connection for a low back disability is remanded. The Veteran has not been afforded a VA examination for her low back claim, despite evidence of a current disability, having been put on a permanent profile while on active duty, and her assertions that her current low back disability is related to service. In light of this evidence, the claim must be remanded for a VA opinion to address the etiology of the Veteran's low back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that, in his September 2021 brief, the examiner referenced the Veteran's report of low back pain beginning in 2001 and obtaining a physical profile in 2006. The examiner must address whether her low back disability pre-existed her second period of active service in their opinion. The matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examinations with appropriate examiners to address the nature and etiology of her claimed tinnitus and low back disabilities. The examiners must review the entire claims file in conjunction with the examinations. With regard to tinnitus: (a.) The examiner should state whether it is at least as likely as not that the Veteran's current tinnitus 1. is related to an in-service injury, event, or disease, including excessive noise exposure, 2. is proximately due to her service-connected PTSD with MDD, or 3. underwent an incremental increase (was aggravated), regardless of permanence, beyond its natural progression by her service-connected PTSD with MDD. (b.) The examiner must specifically address the February 2015 VA examination report noting that stress and anxiety were a cause of tinnitus. (c.) The examiner must also specifically address the medical literature cited in the September 2021 brief from the Veteran's representative indicating (1) that excessive noise exposure can lead to tinnitus that can wax and wane, and (2) the correlation between tinnitus and psychiatric disorders. With regard to the low back: (a.) The examiner should state whether it clearly and unmistakably (undebatable) preexisted the Veteran's service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) The examiner must specifically address (1) the complaints of low back pain in 2001, prior to her February 2006 entrance to active duty, and (2) the first grant of a permanent profile for her low back while on active duty in May 2006. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.