Citation Nr: 21012328 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-32 046 DATE: March 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s tinnitus had its onset in immediately post-service and has continued since. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from August 1979 to August 1983 and again from October 2002 to March 2003. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in July 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The Veteran is currently service connected for bilateral hearing loss and contends that service connection is also warranted for tinnitus. At his Board hearing, he testified that he experiences ringing in his ears. His DD214 establishes that his MOS was Light Vehicle Mechanic. He testified that he worked around 60 KW generators, Hawk missiles, as well as very loud trucks. He was stationed near an air base where there were loud flying aircrafts nearby. The Board finds that he has credibly reported ringing in his ears and his military duties establish that he was likely exposed to acoustic trauma. As such, the first and second elements of service connection have been met. With regard to the so-called “nexus” requirement, the Board notes that certain chronic diseases 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. Although a favorable medical nexus opinion is generally necessary for a grant of service connection, no such opinion is needed if the disorder or condition for which service connection is sought is one that is recognized as a “chronic disease” in 38 C.F.R. § 3.309(a). After having considered all of the evidence of record, the Board concludes that although the Veteran’s tinnitus was not shown as chronic (reliably diagnosed) in service or within a presumptive period, and did not manifest to a compensable degree within a presumptive period, he has credibly reported that his tinnitus began immediately after service, and although intermittent, has continued since. Given the Veteran’s statements regarding continuity of symptomatology, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran was last afforded a VA audiological examination in October 2013. Since that time, he has contended that his hearing has gotten worse. Further, at his Board hearing, he identified potentially relevant VA treatment records which need to be obtained prior to adjudicating the claim. As such, remand is required.   2. Entitlement to service connection for a low back disorder; and entitlement to service connection for a bilateral knee disorder is remanded. The Veteran contends that service connection for a low back disorder as well as a bilateral knee disorder is warranted. His theory of entitlement is that the wear and tear of his military duties caused his low back and bilateral knee disorder. As noted above, the Veteran’s MOS was Light Vehicle Mechanic. At his Board hearing, he reported that his job duties required him to lift heavy objects and kneel often. At his Board hearing, he reported functional impairment in both knees. Specifically, in addition to pain, he stated that his knees give way causing him to lose balance and fall. The Veteran was afforded a VA examination for his knees in September 2013. At the time of examination, he reported that he began to have noticeable pain in his knees immediately after leaving service in 2003. He treated the pain with over-the-counter medications but since that time, the pain has progressed. The examiner opined that the Veteran did not have a left knee disability for VA purposes. However, in light of Saunders, and the Veteran’s reports regarding his knees giving way, a disability for VA purposes has been established. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Regarding the Veteran’s right knee, the examiner diagnosed right knee strain and opined that it was less likely than not related to service. No rationale was provided. As such, remand is required to obtain additional VA medical opinion. The Veteran was also afforded a VA examination for his low back in November 2013. At that time, the examiner noted a diagnosis of low back strain. The examiner opined that the Veteran’s low back disorder was less likely than not related to service because “there is no clinical or objective evidence of treatment for a back condition in service, with no post military evidence of chronicity.” The examination report is incomplete. The examiner did not have the opportunity to consider the Veteran’s theory of entitlement; that his low back disorder was caused by wear and tear caused by his in-service MOS duties. As such, remand is required to obtain additional VA medical opinion. 3. Entitlement to service connection for bilateral carpal tunnel syndrome; and entitlement to service connection for an acquired psychiatric disorder is remanded. At his Board hearing, the Veteran reported having a current diagnosis of bilateral carpal tunnel syndrome. However, his claims file contains essentially no treatment records. The Veteran was last asked to provide any relevant private treatment records by a July 2013 Duty to Assist letter. Given this, the Board finds that remand is required to obtain any outstanding VA and private treatment records. Similarly, at his Board hearing, the Veteran reported experiencing several psychiatric symptoms, including extreme anger. He reported going to a counselor for as much. However, his claims file contains essentially no treatment records. Thus, the Board is unable to ascertain whether or not the Veteran has a currently diagnosed psychiatric disorder. As such, remand is required. The matters are REMANDED for the following action: 1. The AOJ should make another attempt to contact the Veteran and ask him to identify all VA and non-VA sources of medical treatment. For any non-VA treatment, the RO should ask the Veteran to provide a signed release of information, VA Form 21-4142. 2. Obtain any outstanding VA treatment records and any authorized private treatment records. 3. Next, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. 4. Obtain a VA addendum opinion from an appropriate clinician addressing the etiology of the Veteran’s low back disorder. The need for an in-person examination is left to the discretion of the examiner. The examiner is advised that he or she may contact the Veteran to elicit any necessary information. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran’s low back disorder is at least as likely as not related to service. In so opining, the examiner must address the Veteran’s theory of entitlement. Specifically, he contends that his low back disorder was caused by wear and tear on his body as a result of his MOS as a Light Vehicle Mechanic. The Veteran has credibly testified that his in-service occupational specialty required him to squat, kneel, and lift heavy equipment often. A complete rationale for any medical opinion rendered must be provided. 5. Obtain a VA addendum opinion from an appropriate clinician addressing the etiology of the Veteran’s bilateral knee disorder. The need for an in-person examination is left to the discretion of the examiner. The examiner is advised that he or she may contact the Veteran to elicit any necessary information. The examiner is to accept as fact that the Veteran experiences functional impairment in both knees. He testified at his Board hearing that his knees give way and cause him to fall and lose balance. After reviewing the entire claims file, the examiner is asked to opine: (a) Whether the Veteran’s left knee disorder is at least as likely as not related to service; (b) Whether the Veteran’s right knee disorder is at least as likely as not related to service. In so opining, the examiner must address the Veteran’s theory of entitlement. Specifically, he contends that his bilateral knee disorder was caused by wear and tear on his body as a result of his MOS as a Light Vehicle Mechanic. The Veteran has credibly testified that his in-service occupational specialty required him to squat, kneel, and lift heavy equipment often. A complete rationale for any medical opinion rendered must be provided. 6. If a review of the Veteran’s treatment records indicates a diagnosis of bilateral carpal tunnel syndrome, or shows functional impairment of the wrists, obtain a VA medical opinion from an appropriate clinician addressing the etiology of any functional impairment of the wrists. The need for an in-person examination is left to the discretion of the examiner. The examiner is advised that he or she may contact the Veteran to elicit any necessary information. After reviewing the entire claims file, for each diagnosed disorder, the examiner is asked to opine: (a) Whether it is at least as likely as not related to service. The Veteran contends that his occupational specialty duties required him to lift, remove, and install heavy equipment such as starters and batteries and this impacted his wrists. A complete rationale for any medical opinion rendered must be provided. 7. If a review of the Veteran’s treatment records documents a diagnosis of any acquired psychiatric disorder, afford him a VA examination with an appropriate clinician to determine the etiology of any diagnosed disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to any of the Veteran’s claimed in-service stressor (whether or not it has been verified). If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A complete rationale for any medical opinion rendered must be provided H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.