Citation Nr: 21025371 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-15 390 DATE: April 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left eye condition is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his tinnitus is causally related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to 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 from October 1973 to September 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in relevant part, denied service connection for both a left eye condition and for tinnitus. In an October 2019 decision, the Board denied service connection for tinnitus. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court vacated the service connection claim for tinnitus and remanded that portion of the Board decision to the Board for development consistent with the parties’ Joint Motion for Partial Remand (Joint Motion). Therefore, both the left eye and tinnitus claims are presently within the Board’s jurisdiction. In October 2019, the Board remanded the Veteran’s service connection claim for a left eye condition for further development. There has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Entitlement to service connection for tinnitus. The Veteran contends that his symptoms of tinnitus are the result of in-service acoustic trauma. The Board concludes that the Veteran has tinnitus that is related to conceded noise exposure in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran contends that he encountered hazardous noise while serving as a truck driver attached to an infantry unit and an artillery unit, where he was tasked with the delivery of projectiles on the firing line and trained in artillery use. He argues that this duty exposed him to acoustic trauma for which he was only given ear plugs as protection. Pursuant to the Joint Motion, it was agreed that a July 2018 VA examiner’s opinion concerning the etiology of the Veteran’s tinnitus was inadequate for its failure to explain why a six-year gap in symptoms and bimonthly frequency necessarily meant that the tinnitus was unrelated to service. In January 2021, the Veteran underwent another VA examination. The examiner’s negative nexus opinion similarly failed to address the deficiencies identified in the prior VA examination by the Joint Motion. Thus, this opinion is also given no probative weight. Considering the facts in the light most favorable to the Veteran and resolving reasonable doubt in his favor, the Board finds that it is at least as likely as not that the Veteran’s current tinnitus is related to service. Accordingly, entitlement to service connection is granted. REASONS FOR REMAND Entitlement to service connection for a left eye condition is remanded. In October 2019, the Board remanded this matter to obtain an addendum opinion to address whether the Veteran’s pre-existing left eye condition was clearly and unmistakably not aggravated by service beyond the natural progression. A December 2019 VA examiner opined that the Veteran’s left eye condition was clearly and unmistakably not aggravated beyond its natural progression by service. To support this finding, the examiner pointed to the Veteran’s best corrected vision in 2019 being 20/20, thus indicating normal vision. The examiner further stated that the visual field changes in both eyes are related to glaucoma, which is of endogenous etiology and not related to any event during service. The VA examiner’s opinion failed to address service treatment records showing an apparent worsening in severity of the Veteran’s vision from entrance to separation from active duty service. Also, the examiner failed to explain how he arrived at the conclusion that the Veteran’s current left eye defective vision was of “endogenous etiology” and thus not related to active duty service. Remand is needed for a more thoroughly reasoned opinion. The matters are REMANDED for the following action: Forward the claims file to a VA clinician to obtain an addendum opinion regarding the etiology of the Veteran’s left eye disorder. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. The examiner is asked to provide opinions to the following questions: (a) Is there clear and unmistakable evidence that the Veteran’s pre-existing left eye disorder, noted on the Veteran’s October 1973 report of medical examination as defective vision, was not aggravated beyond the natural progress of the disability during the Veteran’s active duty service? Please identify any clear and unmistakable evidence with specificity. The examiner should specifically consider and discuss as necessary the findings on the October 1973 entrance examination report, as well as the September 1980 separation examination. (b) If the answer to (a) is no, is it at least as likely as not that the Veteran’s left eye disability was caused or aggravated by active service? A complete rationale should be provided for all opinions and conclusions expressed. J. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.