Citation Nr: 21015390 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-01 426 DATE: March 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain is remanded. FINDING OF FACT The Veteran’s tinnitus is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1994 to September 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Tinnitus The Veteran seeks service connection for tinnitus, which he contends originated in service. The medical evidence confirms a current diagnosis of tinnitus. See September 2015 VA Hearing Loss and Tinnitus examination. The central issue that must be resolved is whether the Veteran’s current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran’s service treatment records (STRs) contain no complaints, treatment, or diagnosis of tinnitus. However, the Board concedes the Veteran’s exposure to excessive noise in service. As noted above, the Veteran underwent a September 2015 VA Hearing Loss and Tinnitus examination. During the examination the Veteran reported that he began experiencing ringing in his ears during military service. The VA examiner opined that the Veteran’s tinnitus was less likely than not (less than a 50 percent probability) etiologically related to his in-service noise exposure. The rationale provided was that there was no evidence of tinnitus or significant hearing threshold shifts in service. In his January 2017 VA Form 9, the Veteran indicated that while on service he was constantly exposed to loud aircraft noise, generator noise, radio frequency noise, and gunfire. Further, the Veteran indicated that he was exposed to numerous explosions from air-to-ground dropped bombs and that he developed a ringing in his ears during active duty service. During the Veteran’s March 2021 Board hearing, he testified that he has experienced ringing in his ears which began in service and continued to present day. Further, the Veteran reported that he was constantly around aircraft, live bombs, constant static from radios, and that he was a parachutist in service. He testified that he first noticed ringing in his ears around a year into service after repeated noise exposure. Finally, the Veteran noted that as a parachutist he attended basic airborne school and military free fall school, and that he could be in an aircraft for several hours exposed to engine noise. The Board finds the Veteran’s lay statements credible in this regard. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to describe his tinnitus symptomatology. Additionally, the Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted above, the Veteran has offered competent and credible evidence of continuity of symptomatology. Given the VA examination and the Veteran’s competent lay statements the Board finds that the totality of the evidence is at least evenly balanced as to whether the Veteran’s tinnitus is etiologically related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran’s tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving any doubt in the Veteran’s favor, because tinnitus is a disability capable of lay observation, and because his tinnitus symptoms have continued from service to the present, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND Lumbar Strain The Board notes that the last VA examination in connection with the Veteran’s service-connected back disability was conducted almost 2 years ago in October 2019. Additionally, the Board notes that during his March 2021 Board hearing, the Veteran indicated that his back condition has worsened since his last examination. The Veteran reported that he experiences constant back spasms, cannot do household chores when he has a flare-up, and takes both over the counter and prescription medications for his back pain. Additionally, the Veteran reported pain radiating down into his left leg. Given the length of time since the last examination, and the potential worsening of the Veteran’s claimed conditions, a remand is warranted for a contemporaneous examination. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lower back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lower back disability and comment on the effect of the lower back disabilities on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (e) The examiner is also asked to determine whether the Veteran is currently experiencing bilateral lower extremity radiculopathy. If so, the examiner must opine whether the Veteran’s lower extremity radiculopathy is at least as likely as not (a 50 percent probability or greater) etiologically related to, aggravated by, or secondary to his service connected back disability. (Continued on the next page)   The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.