Citation Nr: 21070738 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-19 004A DATE: November 24, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. Entitlement to service connection for radiculopathy of the left upper extremity is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected bilateral knee and right ankle and foot disabilities, is remanded. FINDING OF FACT Resolving all doubt in his favor, the Veteran's currently diagnosed tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to October 1988, with service in the Reserve and National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2015 and May 2016 by a Regional Office of the Department of Veterans Affairs (VA). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the February 2018 statement of the case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for 60 days for the submission of additional evidence; however, in a statement received later that month, the Veteran waived such time period and requested that the appeal be considered based on the evidence of record. While the Veteran's claims for service connection for right shoulder, neck, and left ankle disorders and tinnitus were pending before the AOJ and at the Board hearing, such were characterized as applications to reopen previously denied claims. However, upon further review of the record, the Board concludes that these claims must be considered on a de novo basis. Specifically, the Board notes that the finality of the April 2014 and October 2014 rating decisions that denied the Veteran's original claims for service connection for right shoulder and neck disorders and tinnitus, respectively, was tolled by the subsequent receipt of relevant service department records in March 2015 and July 2015. 38 C.F.R. § 3.156(b). Moreover, while the AOJ found that the instant appeal stemmed from a rating decision issued in May 2016, the Veteran's notice of disagreement received later that same month is timely as to the August 2015 rating decision that addressed the issues of entitlement to service connection for right shoulder, neck, and left ankle disorders. Thus, given the foregoing procedural history, the Veteran's claims for service connection for right shoulder, neck, and left ankle disorders and tinnitus will be reviewed on a de novo basis. 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the pendency of his claim. Charles v. Principi, 16 Vet. App. 370 (2002). Such diagnosis was also confirmed during his October 2014 and March 2015 VA audiological examinations. The Board further finds that the Veteran has competently and credibly reported the onset of tinnitus during service. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). In this regard, the Veteran states that he first experienced episodic tinnitus during service after his exposure to excessive noise without adequate hearing protection coincident with performing the duties associated with his military occupational specialty (MOS) of a combat engineer. Indeed, while the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to tinnitus, his reports of exposure to excessive noise are consistent with such MOS. Moreover, the likelihood of his exposure to excessive noise from firearms during his approximate nine years of active duty is further supported by his receipt of marksman (rifle) and sharpshooter (grenade) badges, as reflected on his DD Form 214. With regard to the Veteran's report of the onset of his tinnitus, the Board notes that such is first addressed in a March 2008 VA treatment record, at which time he reported that he was unsure of the date of onset of his tinnitus. In a September 2011 VA treatment record, the Veteran reported the onset of his tinnitus "over the past few years," conceivably confusing the date of onset with his initial treatment a few years previously. Further, during his June 2021 Board hearing, he clarified that he first experienced tinnitus during service, but the initial intermittent and recurrent nature of his tinnitus complicated his detection of its onset. Additionally, at such time, as well as at the October 2014 and March 2015 VA examinations, the Veteran reported the onset of his tinnitus during service, recently testifying that he believes such occurred in 1987. Given this context, the Board resolves all doubt in the Veteran's favor and finds that his statements as to the varying onset of his tinnitus are consistent with his report that he has experienced recurrent episodic tinnitus since service. Conversely, the negative nexus opinions rendered in conjunction with the Veteran's October 2014 and March 2015 VA examinations are accorded no probative weight as they are predicated on an inaccurate factual premise, namely that the Veteran did not experience tinnitus during or for many years after service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). Therefore, in light of the foregoing, the Board resolves all doubt in the Veteran's favor and finds that his currently diagnosed tinnitus had its onset during service. Accordingly, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for radiculopathy of the left upper extremity. 4. Entitlement to service connection for radiculopathy of the right upper extremities. 5. Entitlement to service connection for a right shoulder disorder. The Veteran asserts that, as a result of injuries sustained during service, he developed chronic right shoulder and neck disorders, which were exacerbated by post-service occupational related injuries. He further contends that he has radiculopathy of the bilateral upper extremities are related to symptoms experienced during service and/or are secondary to his claimed neck disorder. The Veteran's service treatment records reflect he was treated for neck pain in December 1986, at which time his symptoms were assessed a strain or sprain, and again in July 1987, at which time such were assessed as a muscular strain. In August 1987, the Veteran received treatment for injuries sustained after losing consciousness while climbing a rope on a confidence course, resulting in a 20-foot fall, after which he experienced right arm numbness. On examination, there was noted tenderness over the right acromioclavicular (AC) joint and rotator cuff tenderness, and he was assessed with a right AC sprain. Right shoulder x-rays conducted at this time showed no abnormalities. In March 1988, the Veteran received treatment for loss of consciousness thought to be associated with a blood pressure drop, and he reported that he had no feeling in his right arm when regaining consciousness. The Veteran underwent a separation medical examination in July 1988, at which time no upper extremity or spinal abnormalities were noted. Unfortunately, the VA medical opinions addressing the etiology of the Veteran's right shoulder, neck, and upper extremity disorders obtained during the course of the appeal fail to adequately consider the medical evidence documented above and/or fail to provide cogent rationales as to why the Veteran's in-service neck, shoulder, and upper extremity injuries did not contribute to his current disorders. Specifically, a March 2014 VA opinion concluding that the Veteran's neck and right shoulder disorders are unrelated to service acknowledges that he experienced neck and shoulder impairments since service, but found that the exacerbation of symptoms after his post-service work-related injuries indicated that his current disorders were unrelated to service. However, this medical opinion fails to adequately explain why the Veteran's longstanding neck and shoulder pain, with documented treatment predating his post-service injuries, did not signify that the Veteran's current right shoulder and neck disorders were at least partially attributable to service. Such an explanation is particularly relevant inasmuch as the Veteran is currently diagnosed with a right shoulder strain with AC joint arthropathy/osteoarthritis and experienced a right shoulder strain and AC joint injury in service, and as he is currently diagnosed with cervical strain and was diagnosed with a neck strain in service. Additionally, while a January 2018 VA medical opinion was purportedly obtained by the AOJ to address the etiology of the Veteran's right shoulder disorder, the opinion references only his in-service treatment for left shoulder complaints. Likewise, the January 2018 VA medical opinion addressing the etiology of the Veteran's radiculopathy of the bilateral upper extremity r incorrectly states that he was diagnosed with such disorders during service. Rather, while the Veteran experienced right arm numbness during service, no diagnosis was rendered. Given these inadequacies, new VA medical opinions regarding the etiology of the Veteran's neck and right shoulder disorders and radiculopathy of the bilateral upper extremities addressing all relevant medical evidence of record and premised on an accurate medical history, must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, inasmuch as the Veteran's radiculopathy of the bilateral upper extremities have been suggested to be neurological manifestations of his neck disorder, adjudication of such claims must be deferred pending the development and readjudication of his claim for service connection for a neck disorder. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). 6. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected bilateral knee and right ankle and foot disabilities. The Veteran asserts that his left ankle disorder is related to an in-service injury or, in the alternative, developed as a result of the alterations in weightbearing and biomechanics stemming from his service-connected bilateral knee and right ankle and foot disabilities. In this regard, the Board notes that, while the Veteran reported an in-service injury to his left ankle, his service treatment records reflect only an injury to the right ankle, for which he is service-connected. Additionally, the only medical opinion of record addressing the etiology of the Veteran's left ankle disorder was obtained in January 2018, at which time the VA examiner only addressed the potential relationship between his left ankle disorder and his bilateral knee disabilities (and does not consider his service-connected right ankle and foot disabilities). In this opinion, the examiner essentially concludes that, because the Veteran's in-service left ankle injury was incurred prior to his in-service bilateral knee injuries, the left ankle disability is unrelated to such service-connected disabilities. However, this medical opinion is legally deficient in that the opinion conflates an in-service right ankle injury with a left ankle injury, and further fails to address whether the Veteran's current left ankle disability is caused or aggravated by altered biomechanics as a result of the service-connected bilateral knee disabilities. Given that the January 2018 medical opinion addressing a theory of secondary service connection is inadequate, a new medical opinion must be obtained addressing whether the Veteran's left ankle disorder is proximately due to or aggravated by his service-connected bilateral knee and/or right ankle and/or foot disabilities. See Barr, 21 Vet. App. at 312. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's right shoulder disorders, which have been diagnosed as right shoulder strain, impingement, AC joint arthropathy/ osteoarthritis, and partial supraspinatus tear. Specifically, after reviewing the record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's right shoulder disorders had their onset during, or are otherwise related to, his military service, to include his in-service treatment in August 1987 after a 20-foot fall, with subsequent right arm numbness and noted tenderness over the right AC joint and rotator cuff tenderness, assessed as right AC joint sprain, and/or his in-service treatment in March 1988 for numbness in the right arm after losing consciousness. In offering such opinion, the examiner should consider the Veteran's report that his post-service work-related injuries exacerbated his right shoulder disorder and a March 2001 post-service VA treatment record reflect complaints of right shoulder pain, which was prior to any post-service work-related injuries. A rationale for any opinion offered should be provided. 2. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's neck disorders, which have been diagnosed as cervical strain, cervical degenerative disc disease, and cervical disc herniation. Specifically, after reviewing the record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's neck disorders had their onset during, or are otherwise related to, his military service, to include his in-service treatment in December 1986 for neck pain, assessed as muscle sprain verses strain; in July 1987 for neck pain, assessed as a muscle strain; and/or in August 1987 for treatment from a 20-foot fall during physical training, with noted shoulder pain and the Veteran's recent reports of also experiencing neck pain at this time. In offering such opinion, the examiner should consider the Veteran's report that his post-service work-related injuries exacerbated his neck disorder and a March 2001 post-service VA treatment record reflect complaints of neck pain, which was prior to any post-service work-related injuries. A rationale for any opinion offered should be provided. 3. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's neurological disorders affecting his upper extremities, diagnosed as bilateral upper extremity radiculopathy and neuropathy. Specifically, after reviewing the record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's upper extremity neurological disorders had their onset during, or are otherwise related to, his military service, to include his in-service treatment in August 1987 after a 20-foot fall with subsequent right arm numbness and/or his in-service treatment in March 1988 for numbness in the right arm after losing consciousness. The examiner is also asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's upper extremity neurological disorders are caused or aggravated by his neck disorder. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 4. Obtain a medical opinion from an appropriate VA clinician addressing the etiology of the Veteran's left ankle disorders, which have been diagnosed as left ankle strain and Achilles' tendonitis. Specifically, after reviewing the record, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's left ankle disorders are caused or aggravated by his service-connected bilateral knee and/or right ankle and/or foot disabilities, to include consideration the effect any alteration in weight bearing and related biomechanical changes would have on the causation or aggravation of his left ankle disorder. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.