Citation Nr: 21073407 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-55 921 DATE: December 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for tuberculosis (also claimed as lung condition) is remanded. Entitlement to service connection for left eye injury residuals is remanded. Entitlement to service connection for left arm arthritis is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to a 10 percent rating based upon multiple, non-compensable service-connected disabilities under 38 C.F.R. § 3.324 is remanded. Entitlement to a compensable initial disability rating for service-connected right eye corneal abrasion residuals is remanded. FINDING OF FACT The Veteran's tinnitus is etiologically related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. INTRODUCTION The Veteran served honorably on active duty in the United States Marine Corps during the Vietnam Era, from December 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. As an initial matter, the Board observes that the issues of service connection for tinnitus and a lung condition have been continuously on appeal since the Veteran timely submitted his Notice of Disagreement (NOD) in February 1997 based upon a September 1995 claim. Although a Statement of the Case (SOC) was not initially issued by the RO, following the Veteran's March 2011 request to reopen the claims, issuance of the July 2012 Rating Decision, and his August 2012 NOD, an SOC was issued in October 2016. Because the Veteran timely submitted his substantive appeal (VA Form 9) in November 2016, the issues are properly before the Board. Moreover, while the issues of entitlement to service connection for left eye injury residuals, left arm arthritis, heart condition, and skin condition, entitlement to a 10 percent evaluation based upon multiple, non-compensable, service-connected disabilities under 38 C.F.R. § 3.324, and an increased rating for service-connected right eye corneal abrasion residuals were also appealed by the February 1997 NOD, the Board observes that the RO has not issued an SOC for these claims. Thus, the Board will assume jurisdiction over these issues for the sole purpose of remanding them for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board observes that the issues of an increased rating for service-connected lumbosacral strain and entitlement to service connection for post-traumatic stress disorder (PTSD), psychiatric disability other than PTSD to include depressive disorder, and bilateral hearing loss were remanded by Board decision dated April 2020. Upon review, these issues remain pending additional evidentiary development at the RO and will be decided in a separate, future Board decision, if in order. Finally, while additional evidence has been added to the claims file from sources other than the Veteran since the last RO adjudication, as the decision below is fully favorable, there is no prejudice to the Veteran in adjudicating the claim. REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Generally, service connection requires: (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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by: (1) a nexus opinion or (2) competent and credible evidence showing the Veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson, 581 F.3d 1313. Additionally, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain specifically enumerated disorders, including other organic diseases of the nervous system such as tinnitus, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015) (considering tinnitus as an organic disease of the nervous system). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson is: (1) competent to identify the medical condition; (2) reporting a contemporaneous medical diagnosis; or (3) describing symptoms at the time that support a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). 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; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert, 1 Vet. App. at 53. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus, which he contends resulted from in-service noise exposure. A VA audiological examination conducted in October 1995 states the Veteran "complains of constant high frequency ringing in both ears," which "has been present since noise exposure in Vietnam." According to the VA examiner, the Veteran's "tinnitus is directly related to his hearing loss and the noise exposure experienced in Vietnam." During a June 2005 Board hearing, the Veteran also credibly and competently testified to experiencing ringing in the ears. The Veteran underwent another VA audiological examination in October 2021, at which time the examiner noted the Veteran's tinnitus began around 1970 "during deployment to Vietnam." According to the VA examiner, it is at least as likely as not the Veteran's tinnitus was caused by or the result of military noise exposure. Tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the RO's October 2016 SOC conceded the Veteran's exposure to in-service noise based upon his military occupational specialty (MOS) of Motor Transport. As a result, the Board finds the Veteran's reports of experiencing excessive noise exposure during active duty are consistent with the circumstances of his service and MOS. See 38 U.S.C. § 1154(a). Thus, an in-service injury in the form of acoustic trauma is established. See Holton, 557 F.3d at 1366, Shedden, 381 F.3d at 1166-67. Based upon the foregoing, the Board finds the most probative evidence of record establishes the Veteran's tinnitus manifested to a compensable degree within the first year following separation from active duty, and he has continued to experience recurrent ringing in his ears since. Thus, service connection for tinnitus is warranted on a presumptive basis as a chronic disease which manifested to a compensable degree within one year of military discharge. See 38 C.F.R. § § 3.307, 3.309; see also Fountain, 27 Vet. App. 258. REASONS FOR REMAND Entitlement to service connection for tuberculosis (also claimed as lung condition) is remanded. The Veteran failed to appear for a Board hearing via live video conference at the Atlanta RO on September 20, 2021. The record reflects that, in August 2015, the Veteran was declared incompetent to manage his own funds. The claims file includes VA treatment records indicating that outreach is required to assess the Veteran for abuse/neglect. Moreover, the Board observes the Veteran's fiduciary was late in submitting the required annual accounting. These facts suggest the Veteran may not have received notice of the hearing and/or could not attend due to good cause. See 38 C.F.R. § 20.704(d). In order to afford the Veteran every opportunity to substantiate his claim, the Board finds another hearing should be scheduled and the Veteran and his fiduciary appropriately notified. Entitlement to service connection for left eye injury residuals is remanded. Entitlement to service connection for left arm arthritis is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to a 10 percent rating based upon multiple, non-compensable service-connected disabilities under 38 C.F.R. § 3.324 is remanded. Entitlement to a compensable initial disability rating for service-connected right eye corneal abrasion residuals is remanded. In a July 1996 Rating Decision, the RO denied service connection for left eye injury residuals, left arm arthritis, heart condition, and a skin condition, as well as a 10 percent rating based upon multiple, non-compensable service-connected disabilities under 38 C.F.R. § 3.324. The Rating Decision also granted service connection for right eye corneal abrasion residuals rated as non-compensable. In February 1997, the Veteran submitted his NOD regarding these claims. It has been over 24 years since the Veteran submitted his NOD but, to date, no SOC has been issued. Thus, the Board must remand these issues to the RO so the Veteran and his fiduciary may be provided with the appropriate SOC, in compliance with 38 C.F.R. § 19.26. See also Manlincon, 12 Vet. App. at 240-41. The Veteran is also advised that his claims for service connection for left eye injury residuals, left arm arthritis, heart condition, and a skin condition, as well as a 10 percent rating based upon multiple, non-compensable service-connected disabilities and an initial compensable rating for service-connected right eye corneal abrasion residuals are not before the Board at this time and will be before the Board only if he files a substantive appeal (VA Form 9) after an SOC is issued. Accordingly, these matters are REMANDED for the following actions: 1. Contact the Veteran's fiduciary of record and verify the most effective method for contacting the Veteran to provide notice of a Board hearing via live video conference at the RO. These efforts must be documented in the claims file. 2. Thereafter, schedule the Veteran for a new Board hearing via live video conference. Notice regarding the hearing must be documented in the claims file. 3. Provide the Veteran and his fiduciary an SOC addressing the issues of service connection for left eye injury residuals, left arm arthritis, heart condition, and a skin condition, as well as a 10 percent rating based upon multiple, non-compensable service-connected disabilities and an initial compensable rating for service-connected right eye corneal abrasion residuals. The Veteran must be advised of the time limit for filing a substantive appeal (Continued on next page) and that, in order for the Board to have jurisdiction in any of these matters, he must submit a timely substantive appeal. These issues should only be returned to the Board if a timely substantive appeal is received. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.