Citation Nr: 21021081 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-44 314 DATE: April 9, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for right ear retracted tympanic membrane is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran experienced in-service noise exposure. 2. The Veteran’s tinnitus at least as likely as not began during his last period of active duty service. 3. The Veteran’s current bilateral hearing loss disability at least as likely as not began during his active duty service. 4. The Veteran’s right ear retracted tympanic membrane disability at least as likely as not began during a period of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. The criteria for service connection for a right ear retracted tympanic membrane disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty to include in the (1) Air Force from September 11, 1978 to September 10, 1982 and from June 1, 1987 to December 8, 1987, (2) the Army National Guard from October 3, 2001 to March 28, 2002, (3) the Army from May 25, 2002 to September 26, 2002, and (4) the Air National Guard from October 1, 2002 to May 28, 2004. This appeal comes to the Board from an April 2011 rating decision. The Board remanded the appeal in October 2018 for further development. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2020). The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for a hearing loss disability. See Hensley v. Brown, 5 Vet. App. at 159 (1993). The Veteran is competent to discuss observed physical symptoms, such as a whooshing or roaring noise in the ears. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (“ringing in the ears is capable of lay observation”). Tinnitus, moreover, is a disorder uniquely ascertainable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, tinnitus is defined as a noise in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that he is entitled to service connection for tinnitus as a result of noise exposure in service. March 2013 and August 2019 VA examinations confirmed a current diagnosis of tinnitus. In-service noise exposure consistent with the Veteran’s Air Force Specialty Classifications exposed him to highly-probable hazardous noise during your periods of active and inactive military service military. Therefore, the Veteran’s claim turns upon whether his tinnitus was incurred in service or is otherwise related to his in-service noise exposure. Service treatment records from the last period of active duty service (from October 2002 to May 2004) including an October 2002 treatment record document tinnitus in the right ear after shooting a weapon two weeks prior. The physician specifically assessed the Veteran as having an “episode of tinnitus.” A March 2013 VA audiology examination include a negative nexus opinion indicating that the Veteran’s tinnitus was more likely than not the result of a motor vehicle accident post-service. However, the Board finds the opinion lacks probative value. The examiner opined that the Veteran had normal hearing while in service and that records are silent for tinnitus without discussing the October 2002 record. An August 2019 VA examination also provided a negative nexus opinion as it pertains to tinnitus, but the rationale pertains to hearing loss. The examiner did not address the Veteran’s in-service diagnosis of tinnitus. The Board affords the negative opinions less probative value as they did not adequately address the Veteran’s reports of tinnitus from the time of his service through the present. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s tinnitus was incurred in and is attributable to service. The Veteran has indicated that he has experienced tinnitus for a “long time.” See August 2019 VA audiological examination report. The Veteran was also diagnosed with an episode of tinnitus during his last period of active duty service. The Board resolves any reasonable doubt in the Veteran’s favor to find that symptoms of tinnitus first manifested in service and were incurred in service. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. Accordingly, the Board grants the tinnitus claim. 2. Entitlement to service connection for a bilateral hearing loss disability is granted. The Veteran maintains that his hearing loss is related to exposure to loud noise during service. As noted in the previous section, the Veteran was exposed to hazardous noise in service. Further, in the August 2019 VA audiological examination, speech recognition scores were 68 percent in the right ear and 56 percent in the left ear. As such, the Veteran has a current bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. Service treatment records include audiological examinations conducted in July 1978, April 1982, May 1987, June 1989, April 1993, April 1999, November 2000, November 2002, and November 2003. The audiological examinations from 1978 through 2000 do not show that the Veteran was diagnosed with hearing loss and no significant hearing impairment is found in his evaluations. As it pertains to the Veteran’s last period of active duty service form October 2002 to May 2004), a November 2002 evaluation showed puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 20, 20, 25, and 20, in the right ear. On the left, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 15, 15, 20, and 25. Based on the Court’s interpretation of audiometric testing in Hensley, this demonstrates some hearing impairment at 3000 Hertz in the right ear and at 4000 Hertz in the left ear. In a November 2003 Report of Medical Examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 20, 10, 35, 15, and 30 in the right ear. On the left, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 5, 10, and 25. This too demonstrates some hearing impairment at 2000 and 4000 Hertz in the right ear, and at 4000 Hertz in the left ear. See Hensley, 5 Vet. App. at 157. Compared to the October 2002 test, there appear to be positive threshold shifts including at 500, 2000, and 4000 Hertz in the right ear and at 500 Hertz in the left ear. Service treatment records include a June 2004 Report of Medical Assessment (completed immediately following the Veteran’s discharge from his last period of active duty service in May 2004). At that time, the Veteran specifically reported having “minor hearing loss.” Given the current hearing loss diagnosis, evidence of hearing impairment and positive threshold shifts shown in service, and the probative lay evidence, the Board resolves any reasonable doubt in the Veteran’s favor and finds that service connection for bilateral hearing loss is warranted. 3. Entitlement to a right ear retracted tympanic membrane disability is granted. A March 2013 VA ear examination report specifically indicated that the Veteran’s retracted ear drum was related to ear infections that were “documented in 2001/2002.” Specifically, the referenced ear infections, as noted by the examiner and confirmed by service treatment records, show that they occurred on November 28, 2001 and September 15, 2002 during active duty. Further, during an October 2002 service treatment note (during the Veteran’s 5th period of active duty service), the Veteran indicated that he had been previously told that his right eardrum was retracted. A diagnosis of right ear retracted tympanic membrane was noted at that time. The Board finds that the evidence of record weighs in favor of a finding that the Veteran’s right ear retracted tympanic membrane was incurred during a period of active duty service, either in 2001 or 2002. This is supported by the March 2013 VA medical opinion and service records. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted. REASONS FOR REMAND In the October 2018 remand order, the Board instructed VA to obtain additional opinions on the right knee and low back. It asked VA to provide a list of all active duty, active duty for training (ACDUTRA), and inactive duty for training (INADUCTRA) periods to the examiners. In an August 2020 clarification request, VA indicated that the examiner provided an opinion that related the Veteran’s right knee and low back disorders to service as these disorders were documented by a medical provider during his service. However, VA noted that the Veteran’s documented right knee injury occurred on March 18, 1993, “which was not during an Active Duty period (and it was also not a prior injury on that record).” As it pertained to the back disorder, VA indicated that the Veteran complained of back pain on June 5, 2001, which “was not within a period of Active Duty.” Finally, VA indicated that despite the above-mentioned dates, the Veteran complained of low back pain and right knee soreness in an exit examination report in June 2004; as such, a date of injury could be assigned as of that date. In a subsequent August 2020 medical opinion, the examiner opined that the Veteran’s disorders were “most likely” unrelated to service given the dates of injury and the disorders appeared to have resolved. VA obtained another opinion in October 2020. The opinion indicates that the Veteran’s knee strain was caused by acute post-service overuse. Although the examiner acknowledges the Veteran’s complaints of right knee pain in 1979 and 1993, the examiner indicated it resolved without residual. The examiner found no immediate objective post-service medical record evidence to indicate treatment for chronic/ongoing right knee pain/condition/pathology was found. The Board finds that a remand is required for several reasons. First, VA failed to provide the examiners with a list of all active duty, ACDUTRA and INADUCTRA periods as requested. The dates are essential because, for periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Moreover, although the most recent October 2020 VA medical opinion indicated that there was no immediate post-service medical evidence indicting ongoing right knee problems, the Veteran specifically reported right knee soreness in the June 2004 Report of Medical Assessment (conducted immediately following discharge from his last period of active duty service). It does not appear that the Veteran’s knee strain has resolved without residuals as the Veteran continues to complain of right knee symptoms. Similarly, a December 2020 VA medical opinion indicated that the Veteran’s low back disorder “was acute and transitory resolving without residual.” However, the examiner failed to address the June 2004 Report of Medical Assessment (completed immediately following the Veteran’s discharge from his last period of active duty service in May 2004), where the Veteran reported having “minor low back pain.” VA must conduct additional development to correct these deficiencies. Additionally, the Veteran indicated he served at Aljaber Air Base in Kuwait in a May 2010 statement, and his service records also indicate he served in Southwest Asia During the Persian Gulf War. As the record indicates the Veteran served in Southwest Asia during the Gulf War, VA should also obtain addendum opinions on whether the Veteran’s claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). The opinions of record focus on the etiology and do not discuss pathophysiology. The Board REMANDS for the following actions: 1. VA should prepare a formal finding memorandum as it pertains to the specific dates listed below, and indicate whether the Veteran was on active duty, ACDUTRA or INADUCTRA: • July 5, 1979 (Veteran complains of knees hurting); • March 18, 1993 (Veteran diagnosed with right knee contusion) • June 5, 2001 (Veteran complains of back pain) • June 10, 2004 (lower back pain and right knee soreness, Report of Medical Assessment at service separation). 2. After verifying the Veteran’s dates of service (to include ACDUTRA and INACDUTRA), VA should obtain addendum opinions by an appropriate medical professional addressing the Veteran’s right knee and back claims. VA should provide the examiner with the information regarding whether the Veteran was on active duty, ACDUTRA, or INACDUTRA on July 5, 1979, March 18, 1993, June 5, 2001, and June 10, 2004. The examiner must then address the following: (a.) State whether it is at least as likely as not (a probability of 50 percent or greater) that each of the Veteran’s right knee disabilities began during or was otherwise caused by any period of service (including ACDUTRA and INACDUTRA). For the purpose of the examination, the examiner should consider any right knee limitation caused by the Veteran’s reports of pain to be a disability. In so doing, please address the following: • July 5, 1979 (Veteran complains of knees hurting); • March 18, 1993 (Veteran diagnosed with right knee contusion); • June 10, 2004 (Veteran complains of right knee soreness in Report of Medical Assessment at service separation). (b.) State whether it is at least as likely as not (a probability of 50 percent or greater) that each of the Veteran’s back disabilities began during or was otherwise caused by any period of service (including ACDUTRA and INACDUTRA). For the purpose of the examination, the examiner should consider any back limitations due to the Veteran’s reports of pain to be a disability. In so doing, please address the following: • June 5, 2001 (Veteran complains of back pain); • June 10, 2004 (Veteran reports lower back pain in Report of Medical Assessment at service separation). (c.) In regard to diagnoses of arthritis of the right knee or back, the examiner should opine whether it is at least as likely as not the arthritis began within one year of a period of active duty service. (d.) In regard to all symptoms of the right knee and back, the examiner should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran’s individual circumstances rather than the illnesses as they are understood in the general public. (e.) The examiner should support the opinions with clear rationale considering the pertinent evidence including the Veteran’s statements about the history of his symptoms including pain over time. (f.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. 3. VA should review the medical opinions to ensure they substantially comply with the Board’s directives. VA should obtain addendum opinions as necessary. Michael Duffy Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.