Citation Nr: 21072299 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-14 714 DATE: December 2, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for a low back condition. Service connection for a left brachial plexus condition. FINDING OF FACT The Veteran's tinnitus had its onset during 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 served on active duty from March 2007 to September 2010. The case is on appeal from November 2015 and December 2015 rating decisions. Service connection for tinnitus. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, 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 a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for tinnitus. He contends that his duties as a track vehicle mechanic exposed him to noise from diesel engines. He also asserts that he was exposed to noise from weaponry fire during training exercises. See November 2015 VA examination report at 4. Initially, the evidence of record establishes the Veteran has a current disability. In this regard, the Veteran reported experiencing tinnitus. See November 2015 VA examination report at 5. The Board notes that the Veteran is competent to report the presence of tinnitus "because ringing in the ears is capable of lay observation." See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Based on the Veteran's competent reports of experiencing tinnitus, the Board finds that the first element of direct service connection has been met. In addition, the evidence of record establishes that the Veteran was exposed to loud noise during service, particularly when reasonable doubt is resolved in his favor. The Veteran specifically contends that he was subjected to noise exposure from diesel engines and weaponry fire during training exercises. In this case, the Board finds that the Veteran is competent to report what he experienced during service. Moreover, his statements regarding in-service noise exposure are consistent with the circumstances of his service. His service personnel records (SPRs) show a specialty of "Track Vehicle Repairer." Thus, the Board finds that it is likely that the Veteran was exposed to noise from diesel engines and weaponry fire as he contends. Concerning the question of whether there is a nexus between the Veteran's tinnitus and his in-service noise exposure, the evidence of record includes a November 2015 VA opinion. At the time of a November 2015 VA examination, the Veteran, who separated from service in September 2010, reported that his tinnitus began four to five years earlier. The examiner determined that it is less likely than not that the Veteran's tinnitus is a symptom associated with his hearing loss. The examiner explained that the Veteran's current hearing sensitivity was within normal limits, and is not consistent with noise induced hearing loss. The Board notes that the evidence does not include a positive nexus opinion specifically linking the Veteran's tinnitus to service. However, at the time of the November 2015 VA examination, the Veteran asserted that his tinnitus began four or five years prior, which indicates that the Veteran's tinnitus had its onset during service. This statement was considered by the examiner and she did not find that Veteran's tinnitus did not have its onset during service. Moreover, the Board finds no reason to doubt the veracity of the Veteran's statements regarding the presence and onset of his tinnitus. Given his competent and credible statements regarding his tinnitus, the Board finds the evidence is at least in equipoise regarding whether the Veteran's current tinnitus began during military service and continued since service. Accordingly, the Board finds that the third and final element of direct service connection has been met. When viewing the evidence in the light most favorable to the Veteran and after resolving any reasonable doubt in his favor, the Board finds that the Veteran currently has tinnitus that commenced in service and continued since service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Service connection for a low back condition. The Veteran is seeking service connection for a low back condition. He asserts that he has a low back condition that is secondary to his service-connected left ankle condition. The Veteran underwent a VA examination in September 2015. At that time, the Veteran reported he experiences low back pain that began during service and has worsened due to his left ankle condition. The examiner found the Veteran had a diagnosis of lumbosacral strain and determined the Veteran's lumbosacral strain is less likely than not proximately due to or the result of the Veteran's service-connected left ankle condition. He explained the Veteran has a normal gait, and the Veteran's ankle injury is not severe enough to affect his spine biomechanics. The Board finds remand is warranted as the September 2015 VA opinion is not entirely adequate to decide the claim. In this regard, concerning the question of whether the Veteran's lumbosacral strain is secondary to his service-connected ankle condition, although the examiner's opinion addressed secondary causation, it did not address the question whether the Veteran's lumbosacral strain is aggravated by his service-connected left ankle condition. In addition, at the time of the examination, the Veteran asserted that his low back pain began during service, thus raising the question of whether service connection is warranted under the direct service connection theory of entitlement. However, the examiner who provided the September 2015 VA examination did opine concerning direct service connection, i.e., whether the Veteran has a low back condition that had its onset during service. Accordingly, an additional examination and opinion are warranted on remand. 2. Service connection for a left brachial plexus condition. The Veteran is seeking service connection for a left brachial plexus condition. He contends he has a left brachial plexus condition that is related to his duties as a track vehicle mechanic. The Veteran's VA treatment records reflect that he complained of left shoulder pain in June, July, and December 2015. In this regard, the Board notes that, even without a current diagnosis, reports of pain may constitute a current disability to the extent they result in functional impairment. See Saunders, 886 F.3d at 1356 (holding that pain causing functional impairment can constitute a current disability). In view of the evidence and the Veteran's assertions, the Board finds the evidence currently meets the low threshold for obtaining a VA examination as to this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records since February 2017. 2. Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran's back condition. The entire claims file should be reviewed by the examiner. The examiner should diagnose any current back condition and should then answer the following questions. Is it at least as likely as not (50 percent or greater) that a current back condition had its onset during, or is otherwise related to, service? The examiner should consider and address the Veteran's statements concerning back pain having its onset during service. Is it at least as likely as not (50 percent or greater) that a current back condition was caused by the Veteran's service-connected left ankle condition? Is it at least as likely as not (50 percent or greater) that a current right shoulder condition was aggravated (made worse) by the Veteran's service-connected left ankle condition? "Aggravation" is an increase in severity beyond the natural progress of the disease. A detailed rationale supporting the examiner's opinion must be provided. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of any left shoulder or brachial plexus condition. All necessary tests should be conducted. The examiner should first identify whether there is a current left shoulder or brachial plexus condition. If there is no diagnosis, the examiner should determine if the Veteran's pain arises to the level of functional impairment in line with Saunders. If not, this should be explained. If there is a left shoulder or brachial plexus diagnosis, or functional impairment of the left shoulder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any such disorder or impairment had its onset during, or is otherwise causally related to, the Veteran's service. Consideration should be given to the Veteran's contentions that he has a left shoulder condition due to duties associated with specialty his as a track vehicle mechanic. A detailed rationale supporting the examiner's opinion must be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.