Citation Nr: 21074175 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-11 452 DATE: December 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for residuals of jungle rot is remanded. FINDING OF FACT The evidence is in equipoise regarding the Veteran's tinnitus beginning in-service. CONCLUSION OF LAW The criteria for service connection for tinnitus are 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 August 1943 to March 1946. He served in combat operations in Okinawa, Japan and Leyte Island, Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript of that hearing has been associated with the claims file. Service Connection 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In addition, for certain chronic diseases, such as hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309 (a). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required. 38 C.F.R. § § 3.303 (b). Continuity of symptoms may establish service connection only for those diseases listed in 38 C.F.R. § § 3.309 (a). 38 U.S.C. § §§ 1101, 1112; 38 C.F.R. § §§ 3.303 (b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon v. Nicholson, 20 Vet. App. at 83. 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus due to in-service hazardous noise exposure during combat. The Veteran testified that he was exposed hazardous noise during combat. He testified that his tinnitus began before his discharge from active service and has continued since that time. The Veteran is competent to diagnose his own tinnitus, and as a combat veteran, his testimony is sufficient to establish that the disability was incurred in service, notwithstanding the fact that there is no official record of such incurrence. Thus, the second and third element of service connection are met. His testimony that his tinnitus began in service and has continued since that time is credible. Accordingly, the Board finds that the third element of service connection, of a nexus between the claimed in-service disease or injury and the present disability is met based upon a showing of continuous symptomatology. Thus, entitlement to service connection for tinnitus is warranted and is thus granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss due to in-service hazardous noise exposure during combat. A January 2014 audiology evaluation shows evidence of a current bilateral hearing loss disability; however, this evidence is insufficient for the Board to determine whether such evidence constitutes hearing loss for VA purposes. As noted above, the Veteran suffered acoustic trauma during service. In addition, he credibly testified that his hearing loss began prior to his discharge and has continued since that time. Although the AOJ noted that the January 2014 audiology report shows hearing loss, they did not afford the Veteran an VA audiological examination. Accordingly, pursuant to the duty to assist, a remand is required to obtain a VA examination. See McLendon. 2. Entitlement to service connection for a right hand disability is remanded. 3. Entitlement to service connection for a right wrist disability is remanded. The Veteran states that he has a present right hand and wrist disabilities that are due to his active service. At the August 2021 Board hearing, the Veteran demonstrated the condition of his right hand and wrist, and the record shows that his right wrist was bent. The record contains various right hand and wrist diagnoses with notations that the Veteran attributed them to in-service injuries and infectious disease. At the August 2021 Board hearing the Veteran indicated there were outstanding VA treatment records. A Remand is necessary to obtain such records. As there is evidence of current right hand and wrist disabilities, evidence of an inservice incurrence of such disabilities pursuant to 38 U.S.C. § 1154 (b), evidence that the disabilities are associated with an in-service injury or disease, and insufficient competent evidence of record for VA to decide the claims, remand is required to obtain a VA examination. See McClendon. 4. Entitlement to service connection for residuals of jungle rot is remanded. The Veteran asserts that he has current residuals of in-service jungle rot. At the August 2021 Board Hearing, the Veteran testified that he was hospitalized right after his discharge from service for his leg and wrist. He stated that his leg was biopsied, and he was told that he "must have gotten something in the jungle." He testified that as a result of that biopsy his left leg is smaller, and he has a scar. He further testified that due to residuals of jungle rot, he had to have a steel pin placed in his left toe at a private facility and that VA provided him with a right foot brace in the 1950's, as well as approximately one year ago. He further testified that he can't even stand on the toes of his right foot due to the jungle rot. The Veteran testimony indicates that there are outstanding private and VA treatment records. Thus, a remand is necessary to obtain such records. The record reflects that the Veteran has a diagnosis of unequal leg length (acquired) and had a consultation for depth shoes and was provided with a brace for his right foot. As there is evidence of current bilateral foot disabilities, evidence of an inservice incurrence of such disabilities pursuant to 38 U.S.C. § 1154 (b), evidence that the disabilities are associated with an in-service injury or disease, and insufficient competent evidence of record for VA to decide the claims, remand is required to obtain a VA examination. See McClendon. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Update the Veteran's VA treatment records to include paper records from Jamaica Plain VA Medical Center. 2. Request that the Veteran complete a VA Form 21-4142 for records from any private treatment providers for the disabilities on appeal, including from the private treatment provider who placed a steel pin in his left toe. Make two requests for the authorized records from any private facility identified by the Veteran unless it is clear after the first request that a second request would be futile. 3. After the above development has been completed, schedule the Veteran for an in-person examination regarding the nature and etiology of any right hand and/or right wrist disabilities. The examiner must review the Veteran's claims file. The examiner is asked to answer the following: Are any right hand and/or right wrist disabilities as likely as not (50 percent probability or greater) related to service, including the development of infectious disease from his combat service in the jungle? The Veteran served in the Pacific during WWII. The combat presumption applies and all of his statements should be considered credible. Provide a rationale to support the opinion. 4. Schedule the Veteran for an in-person examination regarding the nature and etiology of any residuals of jungle rot. The examiner must review the Veteran's claims file. The examiner is asked to: Identify/diagnose any residuals of jungle rot that presently exist or that have existed during the appeal period. For each identified disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's service. The Veteran served in the Pacific during WWII. The combat presumption applies and all of his statements should be considered credible. Provide a rationale to support the opinion. 5. Schedule the Veteran for an in-person examination regarding the nature and etiology of any hearing loss disability. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether any bilateral hearing loss disability it is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, including the Veteran's presumed acoustic trauma during combat? (Continued on the next page) The Veteran served in the Pacific during WWII. The combat presumption applies and all of his statements should be considered credible. Provide a rationale to support the opinion. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.