Citation Nr: 21007384 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-53 758 DATE: February 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hepatitis C, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence establishes tinnitus resulted from acoustic trauma in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 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 in the United States Army from April 1969 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Colorado Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2020, the Veteran testified at a Virtual Board hearing held by the undersigned Veterans’ Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. He contends that he first experienced tinnitus during service as a result of his exposure to acoustic trauma. See October 2017 VA Form 9. 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. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). 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 assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, a diagnosis of tinnitus has also been confirmed by a medical examiner in an April 2016 VA hearing loss examination. See April 2016 C&P Examination With respect to an in-service injury or disease, the Veteran's DD-214 shows a primary specialty of radio operator, with service in Vietnam with a Combat Infantryman badge. See Certificate of Release or Discharge from Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). The Veteran stated that he was subjected to constant noises in service. His assertions are consistent with the circumstances of his service. The Veteran's service treatment records (STRs) are absent for evidence of any complaints of or treatment for tinnitus during service. See STRs. However, the Veteran has stated that his tinnitus began during 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 the Veteran's tinnitus had its onset during 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). The Board reiterates that the Veteran is considered competent to report the onset and continuous presence of tinnitus. See Charles, 16 Vet. App. 370. In addition, the Veteran has been consistent in his reports of experiencing tinnitus since service. Given the consistency of the Veteran's reports of tinnitus since service, the Board finds that his statements regarding chronic symptoms of tinnitus since service are credible. 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 v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The April 2016, the VA examiner noted that hazardous noise exposure while in service is conceded but opined that the claimed condition was not related to service. The examiner’s rationale was that in the absence of an objectively verifiable noise injury, the association between the Veteran’s claimed tinnitus and noise exposure cannot be assumed to exist. See April 2016 C&P Examination. The Board notes however that, the April 2016 VA examiner did not adequately address the Veteran's reports of continuous tinnitus since service. As such, the Board finds that the April 2016 VA examiner's opinion is not dispositive and finds that the evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during service. Therefore, as the Board must resolve doubt in the Veteran's favor, 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 hepatitis C to include as secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. The Veteran has contended that there are a number of risk factors involving his military experience that could have increased his likelihood for contracting hepatitis C. In particular, the Veteran has asserted that he donated blood and used Vietnamese barbers to cut his hair, all under less hygienic conditions. See June 2016 Notice of Disagreement (NOD). During Board hearing, the Veteran testified that after service, he had alcohol problems and began using cocaine intranasally as coping mechanisms for his service-connected PTSD. See June 2020 Hearing Transcript. The Veteran was afforded a VA examination in May 2016. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that the risk factor for contracting hepatitis C from intravenous drug use has a hazard ratio of 50 times greater than the risk of an individual contracting hepatitis C with no risk factors (standard risk). The risk of contracting hepatitis C from intranasal cocaine use is 30 times the standard risk. The examiner noted that the Veteran had nearly twenty-year history of intra-nasal cocaine use. This is far and away the most likely cause of the veteran contracting hepatitis C. The risk from multiple sexual partners in the Veteran's case (none known to have a chronic liver condition) is 2 to 3 times the standard risk. To date there has been no medical evidence that links military vaccination with an increased risk of contracting hepatitis C. A single night in jail carries no increased risk. There is no history of blood transfusions, body piercing or tattoos. See May 2016 C&P Examination. The Board finds this examination inadequate because even though the examiner discussed the risk associated with hepatitis C and intranasal cocaine use, the examiner omitted to discuss other risk factors like donating blood and using a Vietnamese barber to cut his hair under the circumstances described by the Veteran. In addition, the Veteran has also testified that he self-medicated with drugs and alcohol to deal with his now service-connected PTSD. The May 2016 examination opinion is limited to a direct theory of entitlement and does not address a secondary theory of entitlement. The Board must consider all reasonably raised theories of entitlement to service connection for the claimed disability. Thus, the Board is without discretion and must remand the appeal for an addendum opinion. 2. Entitlement to service connection for a bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to service in Vietnam. The Veteran was afforded a VA audiological evaluation in April 2016. He was diagnosed of bilateral sensorineural hearing loss that meets the criteria to be considered a disability for VA purposes. The examiner opined that the Veteran's bilateral hearing loss is less likely as not related to service. The examiner’s rationale was that there is no evidence in the record that the Veteran sustained noise injuries based on his service audiograms; that there was no significant threshold shift in service; and that there is no basis to conclude that the hearing loss was causally related to military service. The examiner further noted that based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure, and that there is no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The examiner concluded that many factors can contribute to hearing loss and/or tinnitus following service such as recreational, occupational, environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, smoking, etc. See April 2016 C&P Examination. The Board finds this examination inadequate because it lacks specificity. It appears that the examiner related the hearing loss to some other post service factor but did not elaborate on this with regards to the Veteran’s specific situation. Thus, an addendum medical opinion clarifying this is warranted. 3. Entitlement to service connection for a low back disability is remanded. The Veteran contends that his low back disability was sustained over the course of combat service in Vietnam. Specifically, the Veteran has stated he was required to carry a PRC-77 radio that weighed 14 pounds on top of his usual combat load. He has also asserted that during helicopter deployments, whenever the helicopter couldn’t land completely on the ground, he and his unit would have to jump about six feet with the supplies that they were carrying for the patrol of whatever operation; and that repeated deployments like that caused his low back disability. See June 2020 Hearing Transcript. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id. The treatment records contain diagnosis and treatment of a low back disability. The Veteran has cited his military occupation specialty and circumstances of his service in Vietnam as the cause of his low back disability. The Veteran has not been afforded a VA examination with respect to this issue. As his post-service treatment records reflect a diagnosis of a low back disability and he has asserted a possible link between his duties in service and his current back disorder, the Board finds the low threshold of McClendon has been satisfied. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, remand is required to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. 2. After the development ordered in Step 1 above has been performed to the extent possible, return the claims file to examiner who provided the May 2016 opinion (or another qualified examiner if unavailable), to provide an addendum opinion as to: (a) whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hepatitis C had its onset or is related to service. The examiner must consider all risk factors as narrated by the Veteran. (b) whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hepatitis C is secondary to the service-connected PTSD. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. After the development ordered in Step 1 above has been performed to the extent possible, return the claims file to examiner who provided the April 2016 opinion (or another qualified examiner if unavailable), to provide an addendum opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral hearing loss had its onset in service, is related to noise exposure in service, or manifested to a compensable degree within one year of separation. The examiner must discuss the specific factors that contributed to the Veteran’s current bilateral hearing loss in providing the opinion. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached 4. After the development ordered in Step 1 above has been performed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his back disability. The examiner must assign a diagnosis for each low back disability found to be present. For each such disability, the examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that the low back disability began during service or is otherwise related to an in-service injury, event, or disease. The examiner must specifically discuss the Veteran's lay statements that his back disability is the result of helicopter jumps, lifting heavy military gear and radio while in service. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he   or she should so indicate and provide a rationale as to why such a finding is made. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.