Citation Nr: 21027630 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-49 946A DATE: May 6, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to increased disability ratings for mechanical low back pain syndrome currently rated as 40 percent disabling since February 6, 2019, and 10 percent disabling prior to February 6, 2019 is remanded. Entitlement to increased disability ratings for right lower extremity radiculopathy involving the sciatic nerve currently rated as 10 percent disabling and whether a separate rating is warranted prior to March 25, 2014 is remanded. Entitlement to increased disability ratings for left lower extremity radiculopathy involving the sciatic nerve currently rated as 10 percent disabling since February 6, 2019; zero percent disabling from March 24, 2014, to February 5, 2019; and whether a separate rating is warranted prior to March 25, 2014 is remanded. Entitlement to an increased disability rating for right lower extremity radiculopathy involving the femoral nerve currently rated as 10 percent disabling and whether a separate rating is warranted prior to February 6, 2019 is remanded. Entitlement to an increased disability rating for left lower extremity radiculopathy involving the femoral nerve currently rated as 10 percent disabling and whether a separate rating is warranted prior to February 6, 2019 is remanded. Entitlement to a disability rating in excess of 10 percent for greater trochanteric bursitis of the right hip based on limitation of flexion is remanded. Entitlement to a disability rating in excess of 10 percent for greater trochanteric bursitis of the right hip based on limitation of extension is remanded. FINDING OF FACT The weight of evidence shows that the tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2000 to May 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2015 (increased ratings for bilateral radiculopathy and the right hip disability based on limitation of extension, and service connection for tinnitus) and August 2015 (increased rating for the right hip disability based on limitation of flexion and the low back disability) rating decision of a Department of Veterans Affairs (VA) regional office (RO). In March 2021, the Veteran and his spouse testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In an August 2012 rating decision, a RO indicated that bilateral lower extremity radiculopathy symptoms were part of the service-connected low back disability. In the May 2015 rating decision, a RO assigned a 10 percent disability rating for right lower extremity radiculopathy involving the sciatic nerve effective March 25, 2014, the date of receipt of the claim for an increased rating. In that same rating decision, a RO assigned a zero percent disability rating for left lower extremity radiculopathy involving the sciatic nerve effective March 25, 2015. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board will consider whether the bilateral radiculopathy of the lower extremities involving the sciatic nerve should be separately rated prior to March 25, 2015. In March 2019 rating decisions, a RO assigned a 40 percent disability rating for the low back disability effective February 6, 2019, and a 10 percent disability rating for left lower extremity radiculopathy involving the sciatic nerve effective February 6, 2019. As these disability ratings are not the maximum ratings, these claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In one of the March 2019 rating decisions, a RO separately rated bilateral lower extremity radiculopathy involving the femoral nerve effective February 6, 2019, and assigned two 10 percent disability ratings effective that same date. As service connection was already in effect for bilateral radiculopathy of the lower extremities, the issues of increased ratings for bilateral lower extremity radiculopathy involving the femoral nerve, to include whether separate ratings are warranted prior to February 6, 2019, are part of the issues on appeal. In light of the above, the issues are stated on the first two pages of this decision. In March 2019, the RO certified the issues for appeal. In June 2019, the RO obtained another medical opinion on tinnitus. In light of the decision below, the Veteran is not prejudiced by the Board's consideration of this new evidence. Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Entitlement to service connection for tinnitus Governing law and regulations 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). Analysis Regarding current disability, a May 2015 VA examination report reveals a diagnosis of tinnitus. Thus, Hickson element (1) is established. The Board must next address whether the Veteran had an in-service disease or injury. The Veteran's DD Form 214 shows that his military occupational specialty was an infantryman. A June 2019 VA examiner noted that it is highly probable that an infantryman was exposed to hazardous noise. The weight of evidence shows that the Veteran was exposed to hazardous noise. Hickson element (2), in-service disease or injury, is established. Turning to medical nexus, there is conflicting evidence. The May 2015 VA examiner opined that it is less likely than not that the tinnitus was caused by or a result of military noise exposure. The examiner noted that it is unlikely that the Veteran had a hearing injury while in service because hearing testing conducted at enlistment and the May 2015 VA examination shows that he did not have a significant threshold shift beyond normal variability while in service. The examiner concluded that while the Veteran had noise exposure in service, the evidence shows no noise injury in service. The examiner noted that the Institute of Medicine (IOM) in its 2006 study, which is titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus," found that it is unlikely that delayed-onset hearing loss occurs. The examiner noted that she had reviewed more recent animal and human studies but that these studies, while elegant and important, do not overturn the conclusions of the IOM regarding delayed-onset hearing loss. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the United States Court of Appeals for Veterans Claims (Court) found that the 2006 IOM study contained qualifying or contradictory findings. The Court noted that the study finds that, "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." The Court, however, also noted that the IOM report indicates that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The June 2019 VA examiner opined that it is at least as likely as not that the tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran reported an onset of constant tinnitus in service right before separation. The examiner indicated that there was evidence of hazardous noise exposure in service because the Veteran was an infantryman and because he received badges for expert marksmanship with a rifle and for being a parachutist. The examiner noted that the relationship between hazardous noise exposure, auditory damage, and tinnitus are well established. Given that the May 2015 VA examiner relied in large part on the IOM study, which the Court noted contains qualifying or contradictory findings, the Board places greater weight on the June 2019 VA examiner's opinion than on the May 2015 VA examiner's opinion. The weight of evidence shows that the tinnitus is related to in-service noise exposure. Accordingly, Hickson element (3), medical nexus, is satisfied. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for tinnitus. The benefit sought on appeal is accordingly allowed. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND At the March 2021 hearing, the representative noted that the service-connected disabilities have worsened since the 2019 VA examinations. Hearing transcript, pages 2-3. Given the passage of time, new examinations are warranted. At the hearing, the representative also noted that the Veteran has been treated at the Memphis VA Medical Center since June 2019. Id. at 3. The RO should obtain all treatment records from that facility for the period from June 2019 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his lumbar spine disability, right hip disability, and bilateral radiculopathy of the lower extremities, and obtain any identified records. Obtain the Veteran's VA treatment records from the Memphis VA Medical Center for the period from June 2019 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mechanical low back pain syndrome and greater trochanteric bursitis. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral radiculopathy of the lower extremities involving both sciatic and both femoral nerves. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. After development above has been completed, the RO should readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.