Citation Nr: 21026438 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-18 854A DATE: May 3, 2021 ORDER Entitlement to service connection for tinnitus for purposes of accrued benefits is granted. REMANDED Entitlement to service connection for a bilateral shoulder condition for purposes of accrued benefits is remanded. Entitlement to service connection for a bilateral hand and finger condition for purposes of accrued benefits is remanded. Entitlement to service connection for a bilateral foot condition for purposes of accrued benefits is remanded. FINDING OF FACT The Veteran was competent to report that he had experienced ringing in the ears since service, and that it is as likely as not due to in-service experiences. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus for purposes of accrued benefits have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from June 1974 to June 1977. The Veteran died in October 2019. The appellant is the Veterans spouse. In September 2017, the Board denied the Veteran's claim for service connection for tinnitus, a bilateral foot condition, bilateral shoulder condition, and bilateral hand condition. The Veteran appealed the decision to the CAVC which, in October 2020, vacated the decision and remanded it for further development. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate "where the record is otherwise inadequate"). The Board notes that while the issue of entitlement to service connection for carpal tunnel syndrome was also addressed by the CAVC, service connection has since been granted, and is no longer on appeal. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for tinnitus for purposes of accrued benefits The Veteran is seeking entitlement to service connection for tinnitus. Initially, the Board observes that service treatment records do not reveal complaints or a diagnosis of tinnitus. At a March 2012 VA examination, the Veteran was examined for tinnitus. After reviewing the Veteran's service treatment records and claims folder, and examining the Veteran, which included obtaining a full history from the Veteran, the VA examiner stated that a diagnosis of tinnitus is based on the Veteran's report and he could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to mere speculation. The examiner noted that the Veteran had normal hearing on both enlistment and ETS physical with no significant threshold shifts. Therefore, the Veteran's diagnosis of tinnitus is based on subjective factors only, and that there is no readily available objective method at this time to confirm the presence or absence of tinnitus. Tinnitus is the type of disability associated with symptoms capable of lay observation (ringing or buzzing in the ears), the Veteran has established a current disability. See Charles v. Principi, 16 Vet. App. 370 (2002). Despite the negative VA opinion of record, the Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. at 307. In this case, the evidence shows a current diagnosis of tinnitus. Although the Board is presented with no record of complaints of ringing in the ears in service or for many years thereafter, the Veteran's personnel records and his report of his military duties evidence significant noise exposure during active duty while working as a motor transport operator, and more specifically as a tractor trailer truck driver. As a layperson, he is competent to report that he has experienced ringing in his ears since service. See Layno v. Brown, 6 Vet. App. 465 (1994). Although there is no objective evidence to support a specific incident of acoustic trauma in service, and there is significant clinical opinion against the claim, the Board accepts the Veteran's statements as competent and credible as to his having been exposed to noise in the military and ringing in the ears that continued thereafter. Therefore, after review of the record, the Board finds that evidence is in relative equipoise, such that a finding of tinnitus of service onset may be conceded. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for tinnitus. 38 U.S.C. § 5107.While the Veteran is not competent to diagnose more complex disorders, he is competent to report tinnitus, as symptoms of tinnitus are within the competence of a lay person. See Jandreau. Thus, the Board finds more probative value in the Veteran's competent, credible, direct statements, indicating that the tinnitus has presented to some degree since service. Accordingly, the Board determines that the March 2012 VA opinion is less probative of continuity of symptoms than the Veteran's direct statements. Because the Veteran has presented competent and credible evidence of tinnitus in and since service, entitlement to service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral shoulder condition for purposes of accrued benefits is remanded. 2. Entitlement to service connection for a bilateral hand and finger condition for purposes of accrued benefits is remanded. The Veteran underwent VA examinations in November 2011 to address his bilateral shoulder condition and bilateral hand and finger condition. The examiner opined that the Veteran's bilateral shoulder and bilateral hand and finger conditions were less likely than not related to his military service. The examiner supported his opinion by stating that the Veteran's complaint of bilateral hand pain did not become evident to be chronic or persistent and could have been sustained during his career as a truck driver. Additionally, the examiner stated that the Veteran's bilateral shoulder condition was a result of aging and the occupational nature of a truck driver. In this case, the Board notes that the VA examiner failed to consider the impact that the Veteran's in-service duties, which included heavy lifting and carrying as a motor truck and tractor trailer truck driver, had on his currently diagnosed bilateral shoulder condition and bilateral hand and finger conditions. Therefore, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral shoulder and entitlement to service connection for a bilateral hand and finger condition. Thus, a remand is warranted. 3. Entitlement to service connection for a bilateral foot condition for purposes of accrued benefits is remanded. The Veteran underwent a VA examination in December 2013 for his bilateral foot condition. The examiner stated that he could not render an opinion regarding pes planus without resorting to speculation. Further, the examiner noted that the Veteran's service treatment records were unavailable for review and a relationship between the service treatment records and current diagnosis cannot be determined. The Board finds that the examiner relied on inaccurate evidence when providing his opinion as it was based on the absence of documentation on record. The Board notes that a diagnosis of pes planus is shown in medical records dated May 2009, July 2011, October 2011, and March 2012. Therefore, the Board finds that a remand is required to obtain an addendum opinion on whether the Veteran's currently diagnosed bilateral pes planus is a result of his military service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral shoulder condition and bilateral hand conditions are at least as likely as not related to his in-service duties, to include the Veterans assertions that he was involved in lifting, carrying, loading and unloading heavy objects. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral foot condition is at least as likely as not related to his military service/proximately to service. In this regard, the examiner should presume that he was diagnosed with a food disorder, to include pes planus, prior to his death. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica