Citation Nr: 21027658 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-48 437 DATE: May 6, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of service connection for a prostate condition, to include prostatitis and benign prostatic hyperplasia (BPH) is remanded. The issue of service connection for degenerative disc disease of the cervical spine is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and August 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing in March 2021. A copy of the hearing transcript is associated with the claims file. 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). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, such as tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Service connection for tinnitus After review of the record, the criteria for service connection for tinnitus are met. A competent diagnosis of recurrent tinnitus was confirmed during a June 2016 VA examination. The Veteran contends exposure to military explosions, gunfire and jet engine noise during service caused him to develop tinnitus. April 27, 2016, Hearing Testimony. While working as military security policeman on the flight line, the Veteran was in close proximity to the aircraft and did not always have ear protection. Id. The Veteran has consistently stated and testified that ringing in his ears began during active service. September 26, 2016, VA Form 9; March 1, 2021, Hearing Transcript. Noise exposure is conceded. The June 2016 examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that because the Veteran's hearing was normal there were no objective factors seen on the examination for which the etiology of tinnitus could be attributed. June 15, 2016, VA Examination. The examiner further reasoned that the service treatment records did not contain complaints, treatment, or diagnosis for tinnitus. Id. The examiner's nexus opinion is given little probative value as the examiner discounted the lay statements of the Veteran indicating that tinnitus began during service because of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). The Veteran is competent to describe symptoms observable to his senses such as ringing in his ears. See Jandreau, 492 F.3d at 1377. The competent and probative evidence is at least in equipoise as to whether tinnitus was noted in service with post-service continuity of the same symptomatology. As a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be based on continuity of symptomatology. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Any doubt on the material issue of a relationship between the present disability and the post-service symptomatology is resolved in the Veteran's favor, and the claim of service connection for tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection, absent intercurrent causes, or service connection via continuity of symptomatology). REASONS FOR REMAND 1. The issue of service connection for a prostate condition, to include prostatitis and benign prostatic hyperplasia is remanded. The Veteran contends that a current prostate condition, to include chronic prostatitis and BPH, are the result of bareback horse-riding during training in service and in-service occurrences of prostatitis. The Veteran was afforded a VA examination in June 2016. The examiner opined that claimed prostate condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering his opinion, the examiner noted that the Veteran had one bout of prostatitis without residuals and experienced no other prostate conditions until 2007. The examiner reasoned that there is no prostate condition that would be dormant for so many years to recur from a prior prostate condition. June 15, 2016, VA Examination. The examiner did not consider the Veteran's contention that bareback horse riding contributed to in-service prostatitis and his current prostate condition. Moreover, since the 2016 examination, the Veteran has provided relevant testimony indicating that burning while urinating started during training. See March 1, 2021, Hearing Transcript. The Veteran further testified that from that point on hesitancy with urine and inability to empty his bladder completely have been ongoing symptoms and flare ups occur every year. Id. A new examination is necessary to adequately consider and address the lay statements of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. 2. The issue of service connection for degenerative disc disease of the cervical spine is remanded. The Veteran contends that he began experiencing neck pain and bilateral upper extremity numbness after an accident in service and that pain continued and progressively worsened after separation from service. See March 1, 2021, Hearing Transcript. Service treatment records confirm that the Veteran hit his face on a steel beam while riding his horse. The Veteran explains that while he was on patrol in the middle of the night he hit a rebar beam with his face and was thrown off his horse cracking the bridge of his nose and snapping his head back causing pain to his cervical region. May 4, 2014, Statement in Support of Claim. The Veteran recounts that this accident happened in 1991 after the eruption of Mount Pinatubo leaving one small makeshift clinic to provide medical assistance. Id. The circumstances on base did not provide for diagnostic imaging, however, the Veteran received stitches and a cervical collar. Id. The Veteran testified that he did not report symptoms because he did not want to leave his unit. See March 1, 2021, Hearing Transcript. The Veteran further provided testimony that he first began seeing a doctor regarding neck pain and numbness in 1997 but was unable to obtain the medical records because they were destroyed. See April 27, 2016, Hearing Testimony. The June 2016 VA examiner rendered a negative nexus opinion. The examiner determined that this injury was not severe and did not involve anything other than a minor laceration of the nose bridge. June 15, 2016, VA Examination. The examiner reasoned that because the Veteran recovered without residual, had no neck injury or fall from his horse at the time of the accident, and there was no neck sequelae in the months and years that followed the cervical spine condition was less likely than not incurred in or caused by the in-service injury. Id. The examiner failed to acknowledge and consider multiple lay statements of the Veteran indicating that he was thrown off his horse and experienced progressively worsening neck pain and bilateral upper extremity numbness after the accident. The examiner further ignored the assessment of the treating clinician of a possible nondisplaced nasal bone fracture, indicating a more severe injury. In addition, the examiner did not address the Veteran's contention that he first sought treatment for neck pain in 1997, just four years after separation from service. A new examination is necessary to adequately consider and address the lay statements of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history). Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of the Veteran's prostate condition, to include prostatitis and benign prostatic hyperplasia. The examiner should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the current prostate condition manifested in or is otherwise related to the Veteran's period of active service. The examiner should consider and address the Veteran's contention that he first experienced burning while urinating during bareback horse-riding training and has experienced yearly flare ups and ongoing hesitancy with urine and an inability to empty his bladder completely since that time. 2. Schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of the Veteran's degenerative disc disease of the cervical spine. The examiner should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the current degenerative disc disease of the cervical spine manifested in or is otherwise related to the Veteran's period of active service. The examiner should consider and address the Veteran's contention that he first experienced neck pain and bilateral upper extremity numbness after running into a steel beam and falling off his horse. The examiner must also consider and address the assessment of the treating clinician of a possible nondisplaced nasal bone fracture and the Veteran's contentions that he did not report symptoms because he did not want to leave his unit and that he first sought treatment for worsening neck pain in 1997. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is reminded that the lack of medical evidence is not an adequate reason for discounting the Veteran's statements. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Monica Ball Jackson, Associate 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.