Citation Nr: 21027533 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-06 588 DATE: May 6, 2021 REMANDED Entitlement to service connection for tinnitus, to include as secondary to a service-connected right shoulder disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1968 to July 1968. This matter comes before the Board of Veterans' Appeals (the Board) on remand from the United States Court of Appeals for Veterans Claims (the Court). This matter was previously before the Board on appeal from a July 2011 rating decision. In a November 2019 decision, the Board denied, in part, entitlement to service connection for tinnitus. The Veteran appealed the Board's decision to the Court. In January 2021, the Court issued an Order that vacated the portion of the November 2019 Board decision to the extent that it denied entitlement to service connection for tinnitus and remanded the matter for readjudication consistent with instructions outlined by the parties in a Joint Motion for Partial Remand (JMPR). Unfortunately, the claims on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for tinnitus, to include as secondary to a service-connected right shoulder disability, is remanded. In the JMPR, the parties agreed that the Board erred when it failed to provide adequate reasons and bases for relying on findings of the May 2011 VA examiner that are inconsistent with the record to deny the Veteran entitlement to service connection to tinnitus. In this regard, the JMPR notes that the Board found that it was willing to accept the Veteran's assertions that he was exposed to acoustic trauma from small arms fire without hearing protection but then relied on the May 2011 examiner's finding that military records do not support military noise exposure to deny entitlement to service connection for tinnitus. Additionally, a VA opinion has not yet been obtained addressing the Veteran's contention that his tinnitus is secondary to his service-connected right shoulder condition. When a theory of entitlement is raised by the record, the Board must consider it. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). In light of this, the Board has recharacterized the Veteran's service connection claim, as reflected on the title page, and on remand, the VA opinion requested must address the issue of secondary service connection. In light of the above, the Board finds that remand is warranted to obtain an additional VA medical opinion addressing the nature and etiology of the Veteran's tinnitus and whether the Veteran's reports of ringing in his ears due to pain from his service-connected right shoulder condition warrant entitlement to service connection on a secondary basis. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of tinnitus. The examiner is asked to provide responses to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its onset during active service, within one year of separation, or is otherwise related to an in-service disease, event, or injury, to include conceded military noise exposure from small arms fire without hearing protection in service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is caused by his service-connected right shoulder condition? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is aggravated (i.e. increased in severity beyond its natural progression) by his service-connected right shoulder condition? In providing responses to (b) and (c), the examiner must specifically consider and address the Veteran's February 2015 lay statement where he stated that when pain worsens in his right shoulder, his tinnitus manifested by ringing and aching in his ear increases. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner's clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran's claims file, as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. If it is determined that there is another, more likely etiology for the Veteran's tinnitus, that should be stated. The examiner should note that the Veteran is considered competent to report the events that occurred during service, including what symptoms he experienced, when those symptoms began, and how long they have persisted. The Veteran's lay statements must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and the Veteran's military service. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.