Citation Nr: 21076806 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-53 128 DATE: December 27, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for acute pseudofolliculitis barbae is remanded. Entitlement to service connection for degenerative joint disease of the left ankle (claimed as left ankle condition injury) is remanded. Entitlement to service connection for residuals of right ankle injury is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his tinnitus was incurred during his active military service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from respective January 2016, August 2016, and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2021, the Veteran testified regarding these issues on appeal at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the records. The Veteran's claims for service connection for hemorrhoids and left ankle injury were originally denied in a December 1994 decision, but additional evidence was received as to these claims within one year of the date of the decision. That decision therefore did not become final and these claims will be addressed on a de novo basis. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. 1. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus had its onset while in service and has continued ever since. A VA audiological examination was performed in April 2016 to ascertain the nature of the Veteran's claimed tinnitus disability. During this examination, the VA examiner confirmed that the Veteran has a recurrent tinnitus diagnosis onset after his military service. Hence, the Veteran has a current disability of tinnitus. See, April 2016 Disability Benefits Questionnaire (DBQ) VA examination for Hearing Loss and Tinnitus. With regards to in-service occurrence, the Veteran has consistently asserted that he started experiencing tinnitus symptoms during his miliary service due to his regular exposure to loud airplanes and that his symptoms continued to the present. Specifically, that while in the Air Force, that the planes landed right outside the building where he worked, which had an echoing effect. Further, as an alert monitor, he was required to sometimes go outside when the planes and jets were coming in, without any hearing protection, and that regular exposure to such echoes and vibrations adversely affected his hearing. See, September 2016 Notice of Disagreement (NOD). See, July 2017 VA Form 9. The Veteran also testified to same during his July 2021 virtual Board hearing. Consequently, the Board finds that the second element of service connection, in-service occurrence has also been met in this case. As to the final element to establish service connection, a nexus currently linking diagnosed tinnitus to his active military service, the April 2016 VA examiner opined that the Veteran's tinnitus was less likely than not (less than 50/50 probability) incurred in service. The VA examiner cites as his sole rationale that the Veteran reported that he did not start experiencing symptoms until after service. The Board notes that this is inconsistent with regard to what the Veteran has otherwise reported. In essence, the VA examiner is relying on the lack of documented evidence of in-service symptoms of tinnitus as a basis to find that the Veteran's currently diagnosed tinnitus could not have had its onset in service, in spite of the Veteran's report of significant noise exposure. A medical opinion based solely on the absence of documentation in the record is inadequate if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran is considered competent to testify as to observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently reported about his in-service significant noise exposure and the continuity of his symptoms post service until the present. See, September 2016 NOD. The Board finds the Veteran's assertions credible and persuasive with respect to his observable symptoms of what in-service occurrences precipitated his tinnitus, and thus, has assigned his statements high probative value. Consequently, the Board finds the VA examiner's rationale for finding less than a 50 percent probability that the Veteran's noise exposure is related to his active military service inadequate, and as such, the Board has assigned this negative nexus opinion low probative value. In weighing these facts, the Board finds that the most credible evidence of record establishes the in-service incurrence of an injury, in this case, the acoustic trauma. The Board further notes that given the nature of this disorder, the Veteran's credible statements of continuity of symptomatology may serve as a substitute for the evidence of an expert regarding its etiology. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current tinnitus was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for his tinnitus is warranted. 38 U.S.C. § 1101, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hemorrhoids is remanded. The Veteran also testified during his July 2021 virtual Board hearing that he began experiencing symptoms of hemorrhoids while in the service and has had recurrent flareups from that time until the present. He also testified that he was treated at a separate facility for symptoms of prostrate and hemorrhoids. While the Veteran has submitted additional medical records, he has not undergone a VA examination specifically addressing his claim for hemorrhoids. The Board therefore finds that a remand is required to obtain a VA examination which fully addresses the etiology of any current hemorrhoids and any relationship between such and his active duty service. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded an initial VA examination in August 2016 to evaluate his claim for bilateral hearing disability, during which the examiner made a finding that the Veteran's hearing in his right ear is normal, and that although he had a sensorineural hearing loss in the left ear, it does not meet the disability standards for VA purposes. In essence, a current diagnosis of bilateral hearing loss was not found, which is necessary for the Veteran's claim to proceed. Consequently, the RO denied the Veteran's claim. However, since this August 2016 VA audiological examination, the Veteran has reported experiencing reduced hearing loss, and he also testified to same during his July 2021 virtual Board hearing. The Board notes that during an audiological evaluation in September 2017, the audiologist recommended that the Veteran's hearing should be re-evaluated every two to five years to monitor his hearing status, and that re-evaluation should be pursued sooner, if a change in hearing is suspected, and/or at his physician's request. Based on these facts, the Board finds that the Veteran's claim for bilateral hearing loss should be remanded for a new examination to determine whether he has a current hearing loss disability for VA benefits purposes and for an etiological opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for acute pseudofolliculitis barbae (PFB) is remanded. The Veteran was afforded a May 2016 VA examination for this claim, during which, his 1975 in-service diagnosis of PFB was acknowledged. However, with regard to a current diagnosis, although the examiner reported that the Veteran had been treated in the past 12 months with Topical corticosteroids (Triamcinolone acetonide 0.1% and Clindamycin phosphate 1% lotion), he also found that the Veteran did not have any visible skin condition. Further, even though it was also reported that the Veteran has other pertinent physical findings, the examiner noted: "Upon exam of the Veterans face and neck, there is no evidence of scarring, no pits, no grooves, no inflammation, no pustules or papules. There is no evidence of active pathology." In terms of a nexus, although the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's PFB is related to his military service, citing to no further record of complaint or treatment of PFB post discharge, the examiner also found that there is insufficient medical evidence to substantiate the Veteran's service connection claim for PFB. Consequently, the Board finds the May 2016 VA examination inconsistent, thus inadequate. Therefore, a remand for a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Entitlement to service connection for degenerative joint disease of the left ankle (claimed as left ankle condition injury) is remanded. 5. Entitlement to service connection for residuals of right ankle injury is remanded. The Veteran was afforded a VA examination in January 2016 to evaluate the nature and etiology of his left ankle disability. During this examination, the Veteran was diagnosed with bilateral degenerative arthritis. The Veteran reported that he hurt his left leg in-service in 1975 while playing basketball and have had residual pain ever since. Although it was acknowledged that the Veteran's STRs reflect in-service treatment, it was noted that residuals of such was for a right ankle injury, not his left ankle. Consequently, the VA Examiner opined that the Veteran's current left ankle degenerative joint disease was less likely than not related to his military service. Subsequently, in October 2016, the Veteran filed a separate initial claim for service connection for residuals of right ankle injury, which was also denied by the RO, citing that no permanent residual or chronic disability was shown, and that his post service treatment record does not reflect continuity of symptoms. During the Veteran's virtual Board hearing in July 2021, he reported that while in service, he fell and landed on his left side while playing football, and that his left foot was put on a cast; that since then he started using his right foot more to compensate for his recurrent left foot pain, which he believed has resulted in his bilateral ankle disability. The Board notes that the Veteran's service treatment record (STR) reflect symptoms of both right and left foot/leg/ankle pain. First, a right foot injury in April 1975, and a subsequent residual pain "post-casting" and "post-severe sprain" of his right foot and ankle in May 1975 was also noted. Also, during the Veteran's separation examination in October 1975, a "moderately swollen left malleolus, chipped bone Mar 1975, no limitation of motion" was reported. Consequently, given that the Veteran has a current bilateral ankle disability, the Board finds that these matters should be remanded for a new VA examination and etiology opinions, that takes into consideration all of the referenced in-service bilateral foot/ankle complaints and symptoms, and the Veteran's lay statements with regard to his post service symptoms. The matters are REMANDED for the following action: 1. With the Veteran's assistance, obtain all outstanding VA and private medical records associated with his remanded claims, particularly with regards to treatment for hemorrhoids and pseudofolliculitis barbae (PFB). 2. Schedule the Veteran for a VA examination with the appropriate medical personnel to determine the current etiology of his claimed bilateral hearing loss disability. The examiner should review the entire claims file, including a copy of this remand order, and then provide the following responses: a) State whether the Veteran has a current hearing loss disability of the right and left ear that meets the VA disability standards. b) If so, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is directly related to his noise exposure during his active service or is otherwise related to his service. The examiner should note that with the granting of the Veteran's claim for his tinnitus, his in-service noise exposure has been conceded. The examiner should also consider any other medical opinions of record relating to the Veteran's bilateral hearing loss symptoms. The examiner(s) is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Any opinions offered must be accompanied by a clear rationale consistent with the evidence of record. The Veteran is reminded that he must cooperate fully with the examiner at the time of the examination so that a consistent and reliable hearing evaluation can be obtained by the examiner. Please note that failing to cooperate in connection with the examination is the same as failing to report for the examination and may result in your claim being decided on the evidence of record without the benefit of the results of this examination. 38 C.F.R. § 3.655. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability, to include pseudofolliculitis barbae (PFB). The examiner should review the entire claims file, conduct all necessary tests and studies, and diagnose any skin disability that the Veteran has or has had at any time during the appeal period. a) For each diagnosed skin disability, including PFB, the examiner should state whether it at least as likely as not (i.e., 50 percent probability or greater) that such had a disability onset in, or is otherwise related to, the Veteran's service or any incident therein. The examiner should take into consideration that the Veteran had a previously diagnosed in-service PFB disability. The examiner is advised that the Veteran is competent to report his symptoms/history with regards to any skin disability, including PFB, and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral ankle disability. The entire claims file, to include a complete copy of this REMAND and of all evidence relevant to the examiner's review must be made available to the medical personnel designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies, should be accomplished, and all clinical findings should be reported in detail. With respect to each left and right diagnosed ankle disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability originated during, or is etiologically related to, the Veteran's active duty service. In forming his or her medical opinions, the examiner is asked to specifically consider the October 1975 military separation examination record, where it is noted that the Veteran had a "moderately swollen left malleolus". Further, specific references to the Veteran's right foot injury in April 1975, and a subsequent residual pain "post-casting" and "post-severe sprain" on his right foot and ankle in May 1975. See, pages 7, 8, 9, 29 and 33 of the STR, received on 9/30/15. The examiner must indicate that this was reviewed. The examiner must also elicit information from the Veteran with regards to his post service symptoms and treatment for his bilateral ankle disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If a negative opinion is offered based primarily on the length of time between the Veteran's military separation and the current diagnoses or an absence of evidence, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any right and/or left ankle foot disability is not related to service. A fully articulated medical rationale for each opinion expressed must be set forth in the examination report, especially if the examiner finds no nexus between the Veteran's active duty service and his current bilateral ankle disabilities. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.