Citation Nr: 21010361 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-28 192A DATE: February 24, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for left hip disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record establishes that his tinnitus first manifested in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to July 1999. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board issued a decision denying entitlement to service connection for a left hip disorder and tinnitus. The Veteran appealed that decision to the United States court of Appeals for Veterans Claims (Court). In an October 2019 Order, the Court granted a September 2019 Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In April 2020, the Board remanded the claims for issuance of a supplemental statement of the case (SSOC) because the Veteran explicitly requested agency of originally jurisdiction (AOJ) consideration of additional evidence associated with the file. A SSOC was issued in January 2021 and the claims have since been returned to the Board. The Board acknowledges that the issues of entitlement to service connection for right and left disabilities were remanded by the Board in November 2018. A Supplemental Statement of the Case was recently issued, but these claims have not yet been recertified to the Board which suggests that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. 1. Entitlement to service connection for tinnitus. The Veteran contends he has tinnitus which stems from his service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to service connection on a direct basis as delineated above, service connection may be granted on a presumptive basis for certain chronic diseases, such as tinnitus, which has been recognized as an organic disease of the nervous system for VA compensation purposes. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A chronic disease may be presumptively service connected if it is shown as chronic in service and manifested at a later date, however remote; to have manifested to a compensable degree within one year of separation from service or if the evidence establishes chronicity and continuity of symptomatology post-service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran alleges that his tinnitus is due to noise exposure from weapon firing, explosives, and other machinery noise during his service. See May 2011 VA Audio Examination. Service treatment records (STRs) are silent for any complaints of or diagnosis related to tinnitus. The Veteran’s DD Form 214 shows a military occupational specialty (MOS) of cavalry scout. Post-service, May 2008 private treatment records document that the Veteran had headaches with tinnitus. The Veteran was afforded two VA audiological examinations. On June 2010 examination, he reported recurrent tinnitus had been present for 10 to 12 years (1998-2000). The examiner opined that because the Veteran did not have current hearing loss and because there is no notation of tinnitus in STRs, it is less likely than not that tinnitus is related to military service. On May 2011 examination, the Veteran reported intermittent tinnitus that began 15 or 16 years ago (1995-1996). A medical opinion was not provided. As stated above, in a November 2018 decision the Board denied the claim for entitlement to service connection for tinnitus finding that the Veteran provided inconsistent statement relating to the onset of tinnitus. The Veteran appealed the denial to the Court. In an October 2019 Order, the Court granted a September 2019 Joint Motion. In the September 2019 Joint Motion, the parties agreed that the Board erred in not considering and discussing material evidence related to a credibility determination, including evidence of memory and mental deficiencies. See Kay v. Principi, 16 Vet. App. 529, 533 (2002). The claims file contains conflicting evidence on whether the Veteran has memory difficulties. In a June 2018 statement, the Veteran reported having a foggy memory and the inability to remember all things. March 2007 private medical records note that colonics would improve the Veteran’s brain fog and memory. A May 2008 private medical letter contains a notation that the Veteran had poor memory and mental confusion that has gradually worsened. Similarly, a May 2010 VA treatment record notes that the Veteran has suffered from mental confusion and poor memory since 2004. However, an August 2011 VA mental health notes contains a mental status exam in which the Veteran’s memory appeared intact. The physician noted that in May 2010 the Veteran was able to remember 3 out of 3 things. On June 2011 VA Mental Disorders Examination, the Veteran’s memory appeared adequate. During a July 2015 VA mental health assessment, a report noted that the Veteran’s memory appeared grossly intact, but was not formally assessed. On May 2020 VA Mental Disorders Examination, although the Veteran reported that his “memory comes and goes” and that he will “[s]ometimes forget simple everyday phrases or words,” the examiner did not find any memory problems. On behavioral observation, the Veteran had no word findings problems and his thought processes were logical and goal directed despite presenting as hyperverbal and tangential. In assessing the evidence of record, the Board acknowledges that tinnitus has been recognized as a condition capable of both lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran is not only competent to provide evidence regarding the lay observable symptoms associated with his claimed tinnitus, he is also competent to render a diagnosis thereof. Indeed, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As the claims file documents a history of memory problems dating back to 2007, the Board finds the Veteran’s statements regarding the onset and continuity of his tinnitus symptoms credible. The Board acknowledges the negative nexus opinion provided by the June 2010 VA examiner. Although the examiner confirmed the Veteran presently experiences tinnitus, the examiner did not address his contention that it onset 10 to 12 years prior, in approximately 1998 during service. 38 C.F.R. § 3.303(b). As such, the Board accords the examiner’s opinion no greater probative weight than the Veteran’s lay statements of record. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Under these circumstances, the Board finds the evidence is in equipoise as to whether the Veteran’s tinnitus was incurred in or caused by his service. Therefore, the Board resolves all reasonable doubt in the Veteran’s favor and finds the preponderance of the evidence establishes his current diagnosis of tinnitus first manifested in service and has continued since that time. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left hip disability is remanded. The Veteran claims to have a left hip disability due to a 1999 slip and fall ice injury during service. In support of this contention, the Veteran submitted a February 2020 lay statement, in which a fellow servicemember recalled that the Veteran slipped and fell on ice during service. In the September 2019 Joint Motion, the parties agreed that the Board erred in not discussing May 2010 and June 2012 private medical opinions. In a May 2010 dated letter, a private physician opined that the Veteran’s low back and left hip degeneration is a direct result of injuries sustained while service active duty in the United States Army. The Board notes that although the private physician listed functional limitations attributed to the Veteran’s conditions, the physician did not provide any rationale for the conclusion reached. In a June 2012 dated letter, a private physician opined the following, Due to his injuries that he sustained while serving in the Army from 1996 to 1999, Mr. [REDACTED] had suffered a severe spinal injury. Through the years, Mr. [REDACTED] condition has worsened. His left hip and lower lumbar area has been calcifying. This is the bodies’ self-defense against instability. Initially, the Board interprets the June 2012 private opinion as raising a secondary service connection theory, that the Veteran’s left hip disability is caused or aggravated by his lumbar spine condition. Notably, during the pendency of the appeal, in a January 2021 rating decision, the AOJ granted service connection for a lumbar strain with calcification disability. Next, the Board finds the May 2010 and June 2012 private physicians inadequate because neither physician provided complete rationale in support of their opinions, thereby rendering their opinions inadequate. See Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). However, the medical opinions trigger VA’s duty to obtain a VA opinion regarding the likely etiology of the Veteran’s left hip disability. Although in June 2011 the Veteran was afforded a VA general medical examination, he has not been afforded a VA examination for his left hip disability. Therefore, a remand is needed for VA opinions on direct and secondary service connection. The matters are REMANDED for the following action: 1. Arrange for an appropriate clinician to provide an opinion in the case regarding the etiology of the Veteran’s left hip disability. It is up the discretion of the selected clinician as to whether an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran is required to provide the opinion. The examiner is requested to provide opinions regarding: a) Whether it is at least as likely as not (50 percent probability or greater) that the left hip disability had causal origins in service or is otherwise related to the Veteran’s active duty service. b) If not, the examiner should indicate whether it is at least as likely as not, (50 percent probability or greater), that the left hip disability were (A) caused or (B) aggravated beyond its normal progression by the service-connected lumbar strain with calcification disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. If the reviewing examiner finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.