Citation Nr: 21022253 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-32 149 DATE: April 15, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left foot disorder is remanded. Entitlement to service connection for left ankle disorder is remanded. Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence indicates the Veteran’s tinnitus is causally or etiologically due to acoustic trauma during service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2000 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in December 2020. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is due to noise exposure during service. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran’s service treatment records (STRs) do not document any symptoms of tinnitus. The May 2016 VA examiner opined that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including military noise exposure. The rationale was that although the Veteran had a high probability of hazardous noise exposure, the Veteran had normal hearing bilaterally on entrance and normal hearing bilaterally on exit. The Veteran’s STRs were completely silent for any reports, diagnoses, or treatments for tinnitus, and the Veteran’s first documented report of tinnitus is at the May 2016 VA examination. In addition, the Veteran denied having tinnitus while in military service. The Court has specifically held that ringing in the ears is capable of lay observation. See Charles v. Principi,16 Vet. App. 370 (2002). Also, in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154 (b) (2012). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. In Reeves v. Shinseki, 682 F.3d 988, 999-1000 (2012), the Federal Circuit noted that in a case in which the Board only recognized that the veteran sustained acoustic trauma, the Federal Circuit maintained that simply because the Board accepted the fact that the veteran suffered acoustic trauma in service did not mean that it was not required to apply the section 1154(b) presumption to the separate issue of whether he suffered hearing loss while on active duty. Notwithstanding, the Federal Circuit has also explained that even when the section 1154(b) combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty. Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). The Veteran’s medals include the Combat Action Badge so he is a combat veteran. In the November 2016 Notice of Disagreement, the Veteran stated that he had tinnitus since military service. He did not go to sick call while in the service because it was not something for which most people go to sick call. At the December 2020 Board hearing, the Veteran related that he experienced ringing in his ears in service. The Board finds the Veteran’s statements regarding his in-service noise exposure and tinnitus symptoms to be credible and consistent with the circumstances, conditions, and hardships of combat service. As such, the Board finds the Veteran’s statements to be probative in regard to whether his tinnitus is related to service. The Board finds the evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service. 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 tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left foot disorder is remanded. The Veteran contends his left foot pain is due to a left ankle injury during service. At the December 2020 Board hearing, the Veteran stated that he experiences left foot pain due to flatfeet. The Veteran is currently being seen at a VA hospital and has been referred to orthopedics. Evidence indicates that there may be outstanding relevant VA treatment records. During a December 2020 hearing, the Veteran reported that he was currently treated at a VA Medical Center and has continued to receive VA treatment for the disability on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The Veteran underwent a VA examination in June 2016 but the examiner indicated that the Veteran did not have a current disorder. The Board will also afford the Veteran an updated examination. 2. Entitlement to service connection for left ankle disorder is remanded. The Veteran contends his left ankle pain is due to a left ankle injury during service. At the December 2020 Board hearing, the Veteran stated that he experiences left ankle pain and has limited motion. The Veteran is currently being seen at a VA hospital and has been referred to orthopedics. Evidence indicates that there may be outstanding relevant VA treatment records. During a December 2020 hearing, the Veteran reported that he was currently treated at a VA Medical Center and has continued to receive VA treatment for the disability on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The Veteran underwent a VA examination in June 2016 but the examiner indicated that the Veteran did not have a current disorder. The Board will also afford the Veteran an updated examination. 3. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that his migraine headaches first manifested during service due to multiple occupational blasts. See Transcript of December 2020 Board Hearing at 5. Alternatively, the Veteran contends that his headaches are due to his service-connected bilateral trapezius strain. See May 2020 Statement in Support of Claim. A June 2020 VA treatment record notes headaches on the Veteran’s problem list. A July 2020 VA treatment record reflects the Veteran was interested in Ibuprofen to manage migraines. At the December 2020 Board hearing, the Veteran related that he first experienced migraines during service. He spoke to his Captain about his headaches and was given some pills. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraine headaches because no VA examiner has opined whether the Veteran’s headaches first manifested during service, or are due to a service-connected condition. Therefore, a remand is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a left foot disorder and left ankle disorder. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) it is at least as likely that the Veteran’s left foot disorder and left ankle disorder or functional impairment associated with the left foot and left ankle are etiologically related to his military service, including complaints noted in August 2003. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of migraine headaches. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) it is at least as likely that the Veteran’s migraine headaches are etiologically related to his military service, to include exposure to multiple occupational blasts. b) it is at least as likely as not the Veteran’s migraine headaches are (1) proximately due to service-connected bilateral trapezius strain, or (2) aggravated beyond its natural progression by service-connected bilateral trapezius strain. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.