Citation Nr: 21075823 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-12 714 DATE: December 21, 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 cervical lordosis is remanded. Entitlement to service connection for compression fractures and degenerative changes of the thoracolumbar spine is remanded. FINDING OF FACT The evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during his active service. CONCLUSION OF LAW With resolution of reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2015 and February 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August of 2021, the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript is associated with the record. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, to include organic diseases of the nervous system such as hearing loss and tinnitus, will be presumed related to service if they were noted as chronic in service; if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.309 (a). In this case, the Veteran contends that that he has bilateral hearing loss (addressed below in the REMAND section) and tinnitus loss due to in-service exposure to noise. More specifically, he has asserted that he was, "around noise a lot at Fort Knox, Kentucky" in service and particularly at the shooting range around tanks while working around weapons. See August 2021 Board Hearing Transcript. With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertions that he currently has tinnitus constitute competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns his credibility on the matter and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran's service treatment records are absent for evidence of any complaints of or treatment for tinnitus during active service. However, the Veteran has stated that his tinnitus began during his active service, and the Board finds that nothing in the record impugns his credibility on that matter. Accordingly, despite the absence of contemporaneous records showing in-service complaints of tinnitus, the Board finds that it is at least as likely as not that the Veteran's tinnitus had its onset during his active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence). In October of 2015, the Veteran was afforded an examination with a VA examiner. That examiner determined that his tinnitus is less likely than not caused by or related his to military service, including in-service noise exposure. As rationale, the examiner noted that "STRs are silent for any complaint, diagnosis, or treatment of claimed condition". Notably, an examiner cannot rely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). However, while that VA examiner provided additional rationale, the Board reiterates that the Veteran is considered competent to report the onset and continuous presence of tinnitus. See Charles, 16 Vet. App. 370. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303 (b), 3.309 (a); Walker, 708 F.3d 1331. The Board has considered both the Veteran's statements and the October 2015 VA examiner's opinion and finds that the evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during his active service. Therefore, the Board must resolve the benefit of the doubt in the Veteran's favor and finds that the claim for entitlement to service connection for tinnitus must be granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, the Board cannot make a fully-informed decision on the Veteran's claimed bilateral hearing loss condition until he is afforded the opportunity to attend a new VA examination and an updated VA opinion is authored. Following audiological testing, a VA examiner previously authored a negative nexus opinion in October 2015 based on rationale that the, "Entrance exam from 1971 indicated moderate hearing loss at 4000 Hz, AD, and mild hearing loss at 4000 Hz, AS. Exam from 1972 indicated normal hearing, AU. Exit exam from 1973 indicated normal hearing, AU. No ear-related complaints were found on the exit exam paperwork. It is likely Veteran entered military service with bilateral normal hearing since subsequent exams in 1972 and 1973 indicated normal hearing. No significant threshold shifts, indicative of noise injury, are noted when comparing the entrance and exit exams. Hearing was normal at military exit. Therefore, there is no objective evidence (i.e. service audiometric results) to support claim of military related noise injury (i.e. noise induced hearing loss). Also, available service treatment records are silent for any complaint, diagnosis, or treatment of claimed condition. Based on the available evidence, it is this examiner's opinion that Veteran's hearing loss is less likely than not (<50%) a result of military noise exposure." As stated above, an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton, 21 Vet. App. 23, 39-40. Therefore, a new opinion will need to be obtained from a VA examiner after the Veteran is afforded a new examination. 2. Entitlement to service connection for cervical lordosis and entitlement to service connection for compression fractures and degenerative changes of the thoracolumbar spine is remanded. The Veteran asserted at his January 2021 Board hearing that he is currently receiving treatment for his claimed back and neck conditions from a private provider. An opportunity to secure these records should be afforded to the Veteran on remand. In addition, the Board observes that a VA examiner opined in January of 2017 that, "I have reviewed virtual files and recent exam. veteran has history as noted above. He has compression fx of L spine as well as degenerative changes. However, these are common medical conditions, often associated with aging, and there is no evidence linking them to service >40 years prior. Thus, it is less likely than not that current lumbosacral conditions are related to military service." However, even if these are "common medical conditions, often associated with aging", the examiner did not explain why in this particular case, these claimed conditions were determined to be less likely than not to be related to service. This is especially true as the Board observes that July 1973 service treatment records indicate that the Veteran presented with "pain in lower back" and "muscle strain", for example. As this opinion lacks sufficient rationale, it provides an insufficient basis upon which to decide the claim. The Court has previously asserted that a mere conclusion without an underlying rationale is of no probative value. See Miller v. West, 11 Vet. App. 345 (1998). Further, an August 2021 opinion authored by a private examiner states simply that it is "at least as likely as not" that these claimed conditions are related to the Veteran's military service. However, as that examiner did not actually provide any reasoning for how it was concluded that the Veteran's conditions were related to his time in active duty service, that opinion similarly provides an insufficient basis upon which to decide the claims. See Miller, 11 Vet. App. 345. Based on the foregoing, the Board cannot make a fully-informed decision until both issues are remanded so that the Veteran may be afforded new VA examinations and so that additional respective VA nexus opinions can be obtained. The matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination the private provider he visits for treatment for his claimed back and neck conditions, as well as any other outstanding private treatment providers. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Following the completion of step one, schedule the Veteran for a VA audiological examination to evaluate the nature and etiology of the Veteran's purported bilateral hearing loss. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and lay assertions. All necessary special studies or tests must be accomplished. Thereafter, the clinician should opine: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing condition onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In so opining, the clinician is asked to reconcile, to the extent possible, the possibility of hearing loss as a delayed result of the above-noted claims made by the Veteran of in-service noise exposure; the assertions made at his Board hearing that he wasn't provided with hearing protection; and the post-service employment and recreational activities reported previously, including to the October 2015 VA examiner. 3. Following the completion of step one, schedule the Veteran for a VA examination to determine the nature and etiology of any (a) neck condition and (b) back condition, to include cervical lordosis and degenerative changes of the thoracolumbar spine. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If no condition is diagnosed but the Veteran expresses experiencing pain, the examiner should indicate whether such pain represents a functional impairment, and if so, the extent of this impairment. Following a review of the evidence of record, to include the Veteran's lay statements and the new VA examination that is performed, the clinician should answer the following for each condition found on examination: Whether it is at least as likely as not (50 percent or greater probability) that the condition onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In so opining, the clinician is asked to reconcile, to the extent possible, the assertions made at his Board hearing that, "one time when I was on the dock, I had --I fell, and that's where my lumbar [and/or neck condition] comes in" AND the July 1973 service treatment records that indicate that the Veteran presented with "pain in lower back" and "muscle strain". (Continued on the next page) Each clinician should provide a full description of each respective disability and report all signs and symptoms necessary for evaluating the Veteran's respective disabilities. A complete rationale should be provided for all opinions given. If the clinician is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. In so opining, each clinician should note that a lack of contemporaneous medical evidence may not be the sole reason for providing a negative opinion and will necessitate a further opinion. 4. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.