Citation Nr: 21076951 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-05 737 DATE: December 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right ear condition other than tinnitus is remanded. FINDING OF FACT The Veteran's tinnitus started during active service and continued to present. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to June 2007. The Veteran appealed a January 2009 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in December 2011 before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript is of record. In May 2017, the Department of Veterans Affairs (VA) sent the Veteran a letter offering a new hearing. The Veteran has not since requested a new hearing. A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In April 2019, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding tinnitus. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's claim is categorized as a right ear condition. This includes such conditions as tinnitus. However, the evidence suggests additional symptoms associated with the Veteran's right ear. Such symptoms will be addressed in the remand section below. The Veteran has tinnitus. See June 2020 examination report. The Veteran contends she was exposed to noise during service with constant use of the telephone and also on the firing range. See December 2017 examination report. The June 2020 examiner noted an onset date of 2007 and that the Veteran reported ringing in both ears since separating from service. See December 2011 Board Hearing Tr. at 10. The Veteran is competent to attest to the existence of tinnitus since service. The Board finds the Veteran's assertions credible. As the Veteran's tinnitus began during service and continued to present, the Board finds service connection for tinnitus is warranted. REASONS FOR REMAND The April 2019 Board decision remanded the issue of service connection for a right ear disability since there is conflicting evidence as to the nature and diagnosis of the Veteran's right ear disability. Throughout the record, apart from tinnitus and ringing in the ears, there is evidence of popping, pressure, pinching, and pain. See February 2010 VA Form 9; December 2011 Board Hearing Tr. at 11-12. The Veteran is now service connected for tinnitus. However, the record is still unclear as to whether the Veteran's other symptoms noted above are associated with tinnitus, or rather another right ear condition and whether such other condition is related to service. The April 2019 Board decision remanded the issue for an examination to determine the nature and etiology of the Veteran's right ear condition. The June 2020 examination report was a hearing loss and tinnitus DBQ conducted by an audiologist. The examiner noted a diagnosis of tinnitus since service. As such, service connection for tinnitus was granted above. Furthermore, the examiner also noted popping and that this may indicate eustachian tube dysfunction or middle ear pathology. However, the November 2021 opinion focused on tinnitus and did not speak to the Veteran's other symptoms, whether she has a separate right ear condition other than tinnitus, and whether such a separate condition was related to service or the Veteran's service-connected headaches as instructed in the April 2019 Board decision. This is especially important as there is medical evidence of record noting the Veteran's symptoms may be associated with a middle ear problem such as eustachian tube dysfunction. See October 2016 opinion. Overall, the remand instructions in the April 2019 Board decision were not fully followed and the etiology and diagnosis regarding the Veteran's other right ear symptoms is unclear. As such, remand is required for a new examination that properly examines the Veteran's right ear symptoms and then provides an adequate etiology opinion for any such condition found. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for her right ear condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination with an otolaryngologist, if available, to determine the nature and etiology of her right ear condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. If an otolaryngologist is not available, schedule the Veteran for an examination with another qualified clinician. Any clinically indicated testing should be performed. After the record review and examination of the Veteran, the examiner should identify all right ear conditions present at any point during the period on appeal since discharge from service in June 2007 that are separate from tinnitus, to include any middle ear problems and eustachian tube dysfunction. If any right ear symptoms are attributable to a diagnosis other than tinnitus, any symptoms and functional loss of the right ear should be described. Then, for each identified condition and/or functional loss present other than tinnitus, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's right ear condition and/or right ear functional loss, was incurred in, or otherwise related, to her time on active service? Is it at least as likely as not that the Veteran's right ear condition was CAUSED by her service-connected headaches and/or tinnitus, to include medication taken for headaches? Is it at least as likely as not that the Veteran's right ear condition was AGGRAVATED by her service-connected headaches and/or tinnitus, to include medication taken for headaches? In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.