Citation Nr: 21022365 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-51 488 DATE: April 15, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for herniated muscle in right calf (right calf disability) is remanded. Entitlement to service connection for low back injury (low back disability) is remanded. FINDING OF FACT The weight of the evidence is at least in relative equipoise as to whether the Veteran has tinnitus that is related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1995 to March 1999, and March 2003 to June 2003. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an April 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is in the Veteran’s file. 1. Entitlement to service connection for tinnitus. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Tinnitus is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, the Veteran has offered competent evidence as to his history of tinnitus. January 2020 Board hearing transcript; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). As such, the first element of service connection—a current disability—has been met. Next, the evidence supports the finding of an in-service event. Specifically, the Veteran contends that he was exposed to hazardous noise due to his MOS of Air Command and Control Electronics Operator, which is consistent with high probability of noise exposure. Moreover, the Veteran contends that the ringing in his ears began in-service and has continued ever since. Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s testimony is well-documented and unvarying throughout the record, and there is no evidence which tends to contradict his recollections. Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran’s MOS. As such, the second element of service connection—an in-service event—has been met. The Veteran’s claim has been denied on the basis that his current tinnitus is less likely than not related to his active service. See July 2015 VA Examination Report. There are competing opinions as to this issue. In support of his contention, the Veteran submitted an opinion from Dr. L. Bridge, Au. D./CCC-A. Dr. Bridge found that the Veteran’s tinnitus is due to the Veteran’s in-service noise exposure. The September 2018 VA examination also found that the Veteran’s tinnitus was due to his exposure to hazardous noise exposure. Finally, as to continuity, the Veteran has indicated that his tinnitus onset following the in-service generator and jet noise exposure and has continued since that time. See September 2018 VA examination. Thus, although there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board resolves reasonable doubt in the Veteran’s favor and finds that he had continuous symptoms of tinnitus since service separation. Accordingly, the requirements of presumptive service connection under 38 C.F.R. § 3.303(b) have been met. In summary, the preponderance of the evidence is for finding that tinnitus was caused related to his active duty service, and service connection is granted. See 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. Thus, the claim for service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for herniated muscle in right calf (right calf disability) is remanded. The Veteran is seeking service connection for a right calf disability. The Veteran contends that his claimed right calf pain and/or disability are related to an in-service herniated muscle in his right calf. The Veteran’s treatment records are inconclusive as to whether the Veteran has a current disability of the right calf. The treatment records, however, document pain in the lower right leg. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “disability” in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” 886 F.3d at 1363, 1368, 1369. However, the Federal Circuit also made clear that a veteran cannot “demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. As such, a VA examination is needed to address whether the Veteran has a disability related to his right calf, and/or whether the Veteran’s pain in his right calf amounts to a functional impairment. 2. Entitlement to service connection for low back injury (low back disability) is remanded. The Veteran contends that his current low back disability is related to his active service. To that end, the Veteran was afforded a June 2017 VA examination to determine the nature and etiology of his claimed low back disability. The Veteran was diagnosed with lumbar spine degenerative arthritis. The VA examiner noted that the Veteran’s May 2003 separation examination noted low back pain with probable relationship to weightlifting and treated with stretching and rest. The examiner concluded that the low back disability was less likely than not related to the Veteran’s active service. However, the Board finds that the rationale proffered is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The VA examiner acknowledged that the Veteran suffered an in-service low back strain but did not discuss why the in-service low back strain is unrelated to the Veteran’s current low back disability. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed right calf disability. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Identify all diagnoses of the Veteran’s right calf. If it is found that the Veteran does not have any disability of the right calf, the examiner must opine whether the Veteran’s right calf pain reach the level of a functional impairment of earning capacity. (b) Is it at least likely as not (a fifty percent probability or greater) that any right calf disability is related to his active duty service, to include an in-service herniated muscle in right calf? 2. Obtain an opinion as to whether the Veteran’s low back disability is related to his active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state whether it is at least as likely as not that the Veteran’s current low back disability is related to his active service, to include in-service complaints of back pain. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Higgins, 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.