Citation Nr: 21015700 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-18 113 DATE: March 18, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for gastroesophageal reflex disease (GERD) is remanded. Entitlement to service connection for a disability manifested by rectal dysfunction is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine strain (hereinafter neck disability) prior to September 1, 2016, and a rating in excess of 30 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain (hereinafter back disability) prior to September 1, 2016, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 1, 2016, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 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 August 1999 to June 2004. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a February 2017 rating decision assigned a 30 percent rating for the Veteran’s neck disability and a 20 percent rating for his back disability, effective September 1, 2016. As these increases do not represent a total grant of benefits sought on appeal, the claims for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Veteran was awarded a TDIU, effective September 1, 2016. The Board notes that entitlement to TDIU has been raised by the record in association with the claims for an increased rating. Therefore, the Board has added a claim of entitlement to a TDIU rating, prior to September 1, 2016, as reflected above. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Service Connection for Tinnitus The Veteran contends that his tinnitus is due to in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. The Board notes that the Veteran has a diagnosis of tinnitus, and therefore the first element of a service connection claim is met. See March 2014 VA examination report. Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran testified at the January 2021 Board hearing that his tinnitus began in service and has continued since service. The Board finds the Veteran’s testimony credible and highly probative. Therefore, the second element of a service connection claim, in-service incident, is satisfied. Tinnitus is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Service connection is available for tinnitus based on continuity of symptomatology. See Walker, 708 F.3d at 1333; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran’s tinnitus has continued since his separation from military service. The Veteran has provided competent and credible evidence regarding continuity from incurrence of the tinnitus while in-service to the present. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102. REASONS FOR REMAND Service Connection for Bilateral Hearing Loss The Veteran’s March 2014 VA audiological examination reveals that the Veteran’s hearing was normal for VA compensation purposes. At the January 2021 Board hearing, the Veteran testified that his hearing loss has worsened since his last March 2014 VA examination. Giving the foregoing, remand is necessary to obtain a new VA examination and medical opinion. Service Connection for GERD During the January 2021 Board hearing, the issue of secondary service connection was raised. Specifically, the Veteran reported that his GERD is secondary to his service-connected PTSD. The Board has a duty to consider all theories of entitlement raised by the record. In this regard, the Board finds that the theory of secondary service connection has been raised and must be addressed. Presently, there is no nexus opinion of record as to whether the Veteran’s GERD has been caused by or aggravated by his service-connected PTSD. Consequently, remand is necessary to obtain an addendum VA opinion to determine whether the Veteran’s GERD is secondary to his service-connected PTSD. Service Connection for a Disability Manifested by Rectal Dysfunction The Board notes that the Veteran was afforded a VA examination in March 2014, in which the examiner noted that the Veteran did not have any condition of the rectum or anus. However, the Veteran’s medical records note diagnosis and treatment for rectal bleeding. Accordingly, the Board finds that remand for a VA examination is warranted in order to clarify the nature and etiology of the Veteran’s disability manifested by rectal dysfunction. Initial Increased Ratings for Neck Disability, Back Disability, and PTSD When pertinent evidence is received by the agency of original jurisdiction (AOJ) after the issuance of the statement of the case (SOC), but prior to transfer of the records to the Board, a supplemental statement of the case (SSOC) must be furnished to the appellant and his representative, unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC or the additional evidence is not relevant to the issue, or issues, on appeal. See 38 C.F.R. §§ 19.31, 19.37(a). Here, evidence was obtained by VA after the SOC was issued, but before the appeal was certified and transferred to the Board. Specifically, the appeal was transferred to the Board on October 11, 2018. Between the time of the issuance of the February 1, 2017 SOC and the Board’s receipt of this appeal in October 2018, there has been VA generated evidence received pertinent to the claims for an initial increased rating for the Veteran’s back disability, neck disability, and PTSD. This includes CAPRI records obtained in December 2017, noting treatment for PTSD from February 2017 through November 2017, as well as July 2017 VA examination reports regarding the severity of the Veteran’s back disability, neck disability, and PTSD. No SSOC was issued addressing this evidence prior to the Board’s receipt of this appeal in October 2018. Accordingly, as the July 2017 VA examination reports and updated CAPRI records were received prior to transfer of the case to the Board, a waiver of AOJ review is not appropriate, and the matters must be remanded for AOJ review and for the issuance of an SSOC. Entitlement to a TDIU, Prior to September 1, 2016 As the Veteran’s claim for a TDIU, prior to September 1, 2016, is inextricably intertwined with his claims for an increased rating, the TDIU issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s bilateral hearing loss. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss is etiologically related to service. A complete rationale must be provided for all opinions provided. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 3. After completing directive #1, return the claims file to the examiner who provided the March 2014 VA examination and medical opinion in order to obtain an addendum opinion. If the March 2014 VA examiner is unavailable, the opinion should be rendered by another qualified medical professional. If the examiner finds that another physical examination is necessary, one should be provided. Following a review of the record, the examiner is asked to opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s GERD began during or is otherwise etiologically related to service; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s GERD is proximately due to, the result of, his service-connected PTSD; c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s GERD has been aggravated beyond normal progression by his service-connected PTSD? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 4. After completing directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s disability manifested by rectal dysfunction. Following a review of the record, the examiner is asked to opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s condition began during or is otherwise etiologically related to service; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s condition is proximately due to, the result of, his service-connected PTSD and/or back disability; c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s condition has been aggravated beyond normal progression by his service-connected PTSD and/or back disability? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 5. The Veteran’s claims for an initial increased rating for back disability, neck disability, and PTSD should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a SSOC. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.