Citation Nr: 21006901 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-05 773A DATE: February 5, 2021 ORDER Service connection for tinnitus is granted. REMANDED A rating higher than 10 percent for degenerative disc disease of the lumbar spine is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 2000. In July 2019, the Board, in part, denied service connection for tinnitus and a rating higher than 10 percent for the Veteran’s lumbar spine disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued an Order granting a Joint Motion of Partial Remand (JMR) which vacated the Board’s decision as it pertained to the denial for tinnitus and a higher rating for the Veteran’s lumbar spine disorder and returned the case to the Board for further appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including tinnitus, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Tinnitus The Veteran contends that his tinnitus is related to his in-service noise exposure. His military occupational specialty (MOS) while in-service was that of utilities systems craftsman and a security apprentice. The Board concludes that the Veteran has a current tinnitus disability that is related to noise exposure in service. The Board finds that the first two elements have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He has competently and credibly reported current tinnitus symptoms began in-service. See July 2015 VA Examination. Also, the July 2015 VA examiner noted that the Veteran’s MOS had moderate noise exposure. See July 2015 VA examination. The Veteran competently and credibly reported that his tinnitus began in-service. Layno v. Brown, 6 Vet. App. 465 (1994). Regarding the third element, nexus, evidence consists of the Veteran’s lay statements and the VA examination. The VA examiner stated that the etiology of the Veteran’s tinnitus was not related to his in-service noise exposure, despite the Veteran indicating that his tinnitus began in 1986 while in-service. See July 2015 VA examination. The Board finds the Veteran’s statements both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994). As the Veteran has competently stated that he experienced tinnitus in service and since service, and tinnitus is a purely subjective disability, the Board finds the evidence is at least in equipoise as to whether the current tinnitus arose in service. Resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Lumbar Spine The JMR found that the August 2015 VA examination relied upon by the Board was inadequate. As such, the Board will remand the matter consistent with the terms of the JMR. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.