Citation Nr: 21021549 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-44 475 DATE: April 13, 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 a right knee disability, to include as secondary to a left ankle disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to a left ankle disability, is remanded. Entitlement to an initial evaluation in excess of 10 percent for a left ankle disability is remanded. FINDING OF FACT The record reflects competent and credible evidence that the Veteran’s tinnitus began in service and has continued intermittently since. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from November 1989 to November 1995 and with the United States Army from January 2004 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in February 2021. 1. Entitlement to service connection for tinnitus Certain chronic diseases, including hearing loss and tinnitus, will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’”). Tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that “ringing in the ears is capable of lay observation” and, as such, a veteran is competent to testify as to that symptom). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service. At the February 2021 Board hearing, the Veteran testified that he first experienced tinnitus during his last deployment to Iraq, and that he has since experienced recurrent tinnitus. The Veteran attended a VA audiological examination in September 2015, at which he reported not knowing exactly when the intermittent tinnitus started. The examiner opined that, because the Veteran’s in-service audiograms revealed puretone thresholds well within normal limits for both ears at enlistment and separation, it is less likely than not the Veteran’s symptoms were caused by military noise exposure. The Board finds that service connection for tinnitus is warranted in this case. The Veteran credibly testified at the February 2021 Board hearing that he experienced tinnitus symptoms during his deployment to Iraq. This testimony does not conflict with his reports on the September 2015 VA examination, where he noted that he could not remember when the tinnitus had its onset. Although the examiner opined that the tinnitus was not caused by military noise exposure, the examiner used puretone threshold results to render the opinion, but did not explain how this clinical test relates to symptoms of tinnitus. Further, the examiner was unable to consider the reports of tinnitus symptoms the Veteran gave at the Board hearing. Accordingly, as the record reflects competent and credible evidence that the tinnitus began in service and has continued intermittently since, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The 2015 VA audiological examination returned results that did not meet the definition of hearing loss in VA regulations. However, at the February 2021 Board hearing, the Veteran testified that his hearing had worsened since the last evaluation. A new examination is necessary to determine whether the Veteran has a hearing loss disability for VA purposes. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left ankle disability, is remanded. 3. Entitlement to service connection for a low back disability, to include as secondary to a left ankle disability, is remanded. The Veteran was afforded VA back and knee examinations in September 2015, at which the examiner identified no diagnoses. The examiner then opined that the Veteran’s “back and knee problems are from subjective pain.” These examinations are inadequate because the examiner failed to identify whether the “back and knee problems” consist of pain alone or pain resulting in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (pain can be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis). As the examiner did not solicit or record any reports from the Veteran regarding current symptoms, flare-ups, or functional loss or impairment of his back and right knee, the record is insufficient to determine whether any current back and right knee disability exists. The Board also notes the examiner failed to address the Veteran’s contention that his back and right knee pain are due to his left ankle disability. For these reasons, a remand is necessary to obtain new examinations. The Board notes the Veteran testified at the Board hearing that he has sought treatment from private providers for his back and other disabilities, and that he intended to submit these records to his claims file. On remand, the Veteran should be notified that VA can assist in obtaining these relevant records. 4. Entitlement to an initial evaluation in excess of 10 percent for a left ankle disability is remanded. The Veteran testified at the February 2021 Board hearing that his left ankle disability has worsened since the last evaluation. Therefore, a new VA examination is necessary to determine the current severity of the Veteran’s left ankle disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for any disability on appeal, including his low back disability, right knee disability, left ankle disability, and bilateral hearing loss, that is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine if the Veteran has a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. If so, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the hearing loss began in or is otherwise caused by the Veteran’s active service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current right knee disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all right knee disabilities currently found. In doing so, the examiner is advised that, in the absence of any underlying diagnosis, knee pain may be considered a disability where it results in functional loss or impairment. For each right knee disability identified, including, if applicable, functional impairment due to pain, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the right knee disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected left ankle disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the right knee disability prior to aggravation by the service-connected left ankle disability. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s February 2021 Board hearing testimony. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current low back disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file, including any relevant private treatment records, and examination of the Veteran, the examiner should identify all low back disabilities currently found. In doing so, the examiner is advised that, in the absence of any underlying diagnosis, low back pain may be considered a disability where it results in functional loss or impairment. For each low back disability identified, including, if applicable, functional impairment due to pain, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the low back disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected left ankle disability. Please note, causation and aggravation are separate concepts and must be addressed independently. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the low back disability prior to aggravation by the service-connected left ankle disability. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s service treatment records indicating complaints of back pain from June 2004 through April 2005, for which the Veteran reported not seeking medical attention. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected left ankle disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.