Citation Nr: 21024802 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-21 398 DATE: April 26, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for back disability is remanded. The issue of entitlement to service connection for neck disability is remanded. The issue of entitlement to service connection for right knee disability is remanded. The issue of entitlement to service connection for left knee disability is remanded. The issue of entitlement to service connection for nasal disability, to include deviated septum, is remanded. FINDING OF FACT The Veteran’s current tinnitus had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the Air Force National Guard of Washington, to include a period of active duty for training (ACDUTRA) from July 15, 1991 to November 19, 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2016 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge via video-conference. The hearing was scheduled for a date in December 2019 and the Veteran was notified of the hearing by way of a letter dated in October 2019. This letter was sent to his address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative. The Veteran did not attend the scheduled Board hearing. He has not offered good cause for his failure to appear at the hearing or requested that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d). As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for deviated septum as a claim of service connection for nasal disability, to include deviated septum. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim; a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. At a September 2015 VA examination, the Veteran reported that his tinnitus began during his active service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “Active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307 (a) (3), 3.309 (a). With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran’s assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns the Veteran’s credibility on the matter, and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran’s DD Form 214 shows that during his period of ACDUTRA he was trained as an antenna systems installation/maintenance specialist. The Veteran reported that he installed equipment on aircraft and was exposed to aircraft noise. Such activities are consistent with the Veteran’s reports of being exposed to aircraft noise, even if only in a training setting. Thus, the record supports his assertions in that regard. Furthermore, he is considered credible in his assertion that he first experienced tinnitus during his active service, and his statements in that regard are therefore probative in establishing that his tinnitus had its onset during his active service. Here is no medical opinion that is contrary to this conclusion. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303 (b), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board resolves any remaining doubt in the Veteran’s favor, and finds that entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the remaining issues on appeal. The record reflects that the Veteran had service in the Air Force National Guard following completion of his period of service from July 15, 1991 to November 19, 1991. His military personnel folder and service treatment records have been associated with the claims file. However, the record is not clear as to the specific dates and times of the Veteran’s periods of ACDUTRA and INACDUTRA in the Air Force National Guard, other than the period from July 1991 to November 1991. Specifically, the Veteran’s military personnel records contain specific dates of the Veteran’s periods of ACDUTRA and INACDUTRA from April 1991 through February 2000. However, the records do not contain specific dates of the Veteran’s periods of ACDUTRA and INACDUTRA or his point credit summary after February 2000. Accordingly, verification of all dates of active duty, ACDUTRA, and INACDUTRA, completed by the Veteran during his time in the Air Force National Guard must be accomplished. 1. Entitlement to service connection for back disability is remanded. 2. Entitlement to service connection for neck disability is remanded. The Veteran contends that he has a back disability and neck disability that are related to his service in the Air Force National Guard. The Veteran was provided a VA examination related to his back and neck in July 2019. The VA examiner diagnosed the Veteran with lumbar strain, acute, and opined that the condition is less likely than not related to his service. As rationale, the VA examiner noted that the Veteran’s service treatment records reflect he complained of low back pain in July 1993, during a period of INACDUTRA. The VA examiner further noted that subsequent medical examinations reflect a normal spine and no complaints of a back injury. However, the VA examiner did not provide an opinion as to whether the Veteran’s back disability was aggravated by any period of ACDUTRA/INACDUTRA. With regard to any periods of ACDUTRA performed as part of the National Guard, service connection may be granted when the individual concerned was disabled or died from a disease or injury that was incurred or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. The term “in the line of duty” means “an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran’s own willful misconduct.” 38 C.F.R. § 3.1 (m). With regard to any period of INACDUTRA performed as part of the National Guard, service connection may be granted when the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). INACDUTRA includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101 (23) (A). The Board notes that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained of disability was not detected. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran’s service treatment records only reflect that an entrance examination was conducted prior to his January 1996 period of INACDUTRA. Hence, as there was no examination prior to the Veteran’s others periods of ACDUTRA/INACDUTRA he is not entitled to be presumed sound prior to those periods of duty. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (finding that the presumption of soundness did not apply in this case to the appellant’s period of ACDUTRA because she was not examined prior to entering into the period of ACDUTRA). As such, subsequent to the July 1993 complaints of low back pain, the Veteran’s claim is one for aggravation. As noted above, the VA examiner did not provide an opinion as to whether the Veteran’s back disability was aggravated by a period of ACDUTRA/INACDUTRA. On remand, the VA examiner must provide an opinion as to whether the Veteran’s back disability was aggravated during a period of ACDUTRA/INACDUTRA. 3. Entitlement to service connection for right knee disability is remanded. 4. Entitlement to service connection for left knee disability is remanded. 5. Entitlement to service connection for nasal disability, to include deviated septum, is remanded. In his substantive appeal, the Veteran contended that VA erred in not providing him a VA examination as to all of his claims. VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant’s service or with another service-connected disability; but there is insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i). Here, a July 2006 private treatment record reflects that the Veteran initially injured his bilateral knees in February 2006 while playing racquetball. His service treatment records reflect that he was diagnosed with bilateral severe osteoarthritis of the knees in November 2013 and underwent knee surgery. Additionally, the Veteran has reported that his bilateral knee disabilities are a result of his National Guard service. See, e.g., substantive appeal, received May 2016. The Veteran has not been provided a VA examination related to his bilateral knee disability. As noted above, the presumption of sound condition attaches only where there has been an induction examination in which the later-complained of disability was not detected. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Subsequent to his February 2006 injury, the Veteran was not provided an induction examination prior to his periods of ACDUTRA/INACDUTRA. However, an opinion must be obtained to determine whether the Veteran’s bilateral knee disability was aggravated during any period of ACDUTRA/INACDUTRA. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). As to the Veteran’s claim for entitlement to service connection for nasal disability, a December 2006 private treatment record contains a diagnosis of deviated septum. Additionally, the Veteran has reported that his deviated septum was related to his National Guard duty. As such, an opinion must be obtained to determine whether the Veteran’s deviated septum was aggravated during any period of ACDUTRA/INACDUTRA. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), the Defense Finance Accounting Service (DFAS) and/or any other appropriate source to verify the specific dates of all periods of active duty, ACDUTRA and INACDUTRA completed by the Veteran during his Air Force National Guard service. All records and/or responses received should be associated with the claims folder. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for knee disability, nasal disability, back disability, and neck disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for knee disability, nasal disability, back disability, and neck disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After the above, forward the record and a copy of this remand to the examiner who conducted the July 2019 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. The examiner must review the evidence of record and be advised that only the Veteran’s confirmed periods of active duty, ACDUTRA and, INACDUTRA may be considered to determine whether the claimed disability is related to service. After a review of the claims file, and with consideration of the Veteran’s statements the examiner should provide the following opinions: (a.) Provide a diagnosis for any back and neck disability demonstrated since service, found on current examination or in the record. (b.) Is it at least as likely as not (50 percent probability or more) that any back or neck disability experienced by the Veteran since approximately November 2013 is related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? If a current back and/or neck disability is opined to be not directly related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA, is it at least as likely as not (50 percent probability or more) that the Veteran’s current back and/or neck disability was aggravated beyond natural progression during an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? A rationale must be provided for each opinion reached. 4. After the first and second remand directives are complete, schedule the Veteran for a VA examination to determine the nature of any current knee disability and to obtain an opinion as to whether any such disability was incurred in or aggravated by service. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Is it at least as likely as not (50 percent probability or more) that any knee disability experienced by the Veteran since approximately November 2013 is related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? If a current knee disability is opined to be not directly related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA, is it at least as likely as not (50 percent probability or more) that the Veteran’s current knee disability was aggravated beyond natural progression during an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? A rationale must be provided for each opinion reached. 5. After the first and second remand directives are complete, schedule the Veteran for a VA examination to determine the nature of any current nasal disability and to obtain a medical opinion as to whether any such disability was incurred in or aggravated by service. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Is it at least as likely as not (50 percent probability or more) that any nasal disability experienced by the Veteran since approximately November 2013 (including, but not limited to, deviated septum) is related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? If a current nasal disability is opined to be not directly related to an established period of active duty service or a verified period of ACDUTRA or INACDUTRA, is it at least as likely as not (50 percent probability or more) that the Veteran’s current nasal disability was aggravated beyond natural progression during an established period of active duty service or a verified period of ACDUTRA or INACDUTRA with the United States Air Force National Guard? A rationale must be provided for each opinion reached. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.