Citation Nr: 21029347 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-63 711 DATE: May 13, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a low back disorder, to include degenerative joint disease of the lumbar spine, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. FINDING OF FACT The Veteran's current tinnitus is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1997 to August 2000. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here tinnitus is considered a chronic disease for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for tinnitus. The Veteran maintains that his current tinnitus had its onset in service. He states that he was constantly exposed to acoustic trauma and loud noises from the duties he performed as a combat engineer. He also noted having been exposed to flight and engine noise when performing his duties as an airborne trooper. He further indicated that there was a lack of hearing protection while in service. The Veteran maintains that he first experienced tinnitus in service and that it has continued to the present day. He has also reported having no noise exposure following service, having sat in a cubicle for employment since his separation from service. In conjunction with his claim the Veteran was afforded a VA examination in March 2015. At the time of the examination. the Veteran indicated that he had had tinnitus for as long as he could remember and during service. He could not recollect a particular date or time of onset. He said it was "hard to describe" but it sounded like a high-pitched squeal constantly in both ears with worsening in the past year. The examiner opined that it was less likely than not (less than 50% probability) caused by or a result of military noise exposure. As rationale, the examiner noted that the Veteran reported positive tinnitus but could not date the onset to an approximate time of onset other than to say it was in the service and he exited the service about 14 years ago. He had normal hearing in both ears and had normal hearing while he was in the service with no aggravation of his hearing levels. Thus, the Veteran's hearing was not impacted by military noise exposure. The examiner indicated that the Veteran had no combat noise exposure and that no documentation of tinnitus was noted in the service treatment records. Thus, with no impact to his hearing from military noise exposure while he was in the service and with no mention of tinnitus in the service treatment records, it was the examiner's opinion that the onset of the Veteran's tinnitus was not likely related to military service. At his April 2021 hearing, the Veteran testified as to the onset of his tinnitus and cited to several specific instances when he had tinnitus following incidents in service. He also indicated that he had constantly had tinnitus since service. The Board finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. With regard to the March 2015 VA examiner's opinion that the Veteran's tinnitus was less likely than not related to his period of service, this was based upon the examiner finding no reports of tinnitus in service treatment records. The Veteran has reported experiencing recurrent tinnitus symptomatology since service, and despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced recurrent tinnitus symptomatology since service discharge. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND As it relates to the claim of service connection for a psychiatric disorder, to include PTSD, the Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of any psychiatric disorder and its relationship, if any, to his period of service. The Board further observes that one of the stressors which the Veteran is claiming serves as the basis for his current psychiatric disorder has been confirmed. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). On remand, such an etiology opinion should be obtained. As it relates to the claim of service connection for a low back disorder, the Board notes that the Veteran has testified as to having sustained numerous back injuries from parachuting during service. He has reported having been involved in over 70 parachute jumps when in service. He has further indicated that many of these jumps were hard landings. The Veteran has also testified as to having had continuous problems with his back since service. At the time of a March 2015 VA examination, the Veteran was diagnosed as having intervertebral disc syndrome and degenerative joint disease of the lumbar spine. Following examination, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. As rationale, the examiner indicated that service treatment records showed a single treatment for a back condition in December 1997, no x-ray was done. No low back condition was listed on the problems list/service treatment records. Currently available private medical records showed no complaint of/or diagnosis for a low back condition. In conclusion, the current low back disability was less likely as not caused by active duty. Although an examination was performed and an opinion was rendered, the examiner did not address the Veteran's complaints of continuous back problems. Moreover, the Veteran's testimony as to having performed in excess of 70 jumps in service was not considered. In addition, the Veteran's DD 214 reveals that he received both the Parachutist Badge and the French Army Parachutist Badge. An additional opinion that considers and addresses the Veteran's competent and credible reports regarding onset of his low back disorder, as well as his inservice parachutist duties, and provides an adequate rationale for all medical opinions provided, must be obtained on remand. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As it relates to the Veteran's clam for a higher evaluation for his right knee disorder, the Board observes that at the time of his April 2021 hearing, he testified that the symptomatology associated with his right knee disorder had increased in severity since the last VA examination. The Board further notes that the United States Court of Appeals for Veterans' Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. A review of the evidence of record reveals that the prior examinations fail to fully comply with the Court's holding in Correia. As such, remand is required to obtain an adequate examination regarding the Veteran's service-connected right knee disorder. See Id. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination to determine the current level of severity of his right knee disability. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's right knee disability. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's precedential decision in Correia, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, and with the opposite side as it relates to the right knee, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must specifically provide an opinion regarding whether the Veteran's condition would result in additional functional limitations during periods of flare-ups. The examiner should also state whether the Veteran's service-connected right knee disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). As to the right knee, the examiner should also discuss the absence or presence of subluxation and instability and the severity of either, if present, to include the factors addressed in the most recent rating criteria. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After all available records have been associated with the file, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder(s), including PTSD, which may be present. The entire record must be made available to the examiner and the examiner should note such review in his/her report. The examiner is requested to render an opinion as to whether it is at least as likely as not that the Veteran currently has PTSD related to his period of service. If a diagnosis of PTSD is rendered, the examiner should identify the claimed stressor that serves as the basis for the diagnosis of PTSD. In this regard, the Board notes that at least one of the Veteran's claimed stressors has been verified. Alternatively, if PTSD is not found on examination, the examiner must delineate all diagnoses reached to account for the Veteran's psychiatric symptomatology. The examiner must also express an opinion as to whether any psychiatric disorder(s) found on examination, is/are at least as likely as not related to the Veteran's period of service. Complete detailed rationale should be provided for each opinion that is rendered. 4. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any current lumbar spine disorder. All indicated tests and studies should be performed and all findings must be reported in detail. The entire record must be made available for review and the examiner should note such review in his/her report. After a complete review of the claims folder, the examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current lumbar spine disorder is related to the Veteran's period of service? (Continued on the next page) In providing the above opinion, the examiner should consider and address statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must also address what impact, if any, the Veteran's in-service parachute jumps had on his current low back disability. Complete detailed rationale is requested for any opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.