Citation Nr: 21031494 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-17 826 DATE: May 24, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. Service connection for a lumbar spine disability is remanded. Service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 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 1960 to February 1964. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2018 rating decision. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service connection Tinnitus 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. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, including organic diseases of the nervous system, such as tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In the current appeal, the Veteran seeks service connection for tinnitus. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). At the August 2020 hearing, the Veteran testified that his tinnitus began in service and has continued since then. He testified that the ringing in his ears has gotten louder over time and that it is constant. He also testified that, in service, he worked at the Fort Campbell Armory Airfield, where he assisted with parking planes. The Veteran's military occupational specialty (MOS) was that of an infantryman. Review of the Duty MOS Noise Exposure Listing shows that exposure for hazardous noise for infantrymen was highly probable, which is consistent with the Veteran's lay testimony. The Board has no reason to question the credibility of his accounts. As such, in-service acoustic trauma is conceded. The Board finds the Veteran's statements as to the onset, and continuation, of his tinnitus symptoms credible. These statements alone are sufficient to establish the criteria for service connection for tinnitus. While there is no objective evidence of tinnitus in service, the Veteran asserts that he developed tinnitus in service and has had tinnitus since then. As noted above, he is competent to give evidence about observable symptoms such as tinnitus and noise exposure. Layno, 6 Vet. App. at 465. His conceded in-service noise exposure supports his contentions. In resolving any reasonable doubt in the Veteran's favor, the Board finds that his tinnitus began during his active service. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for tinnitus is granted. REASONS FOR REMAND Service connection Bilateral Hearing Loss, Bilateral Knee Disability, Lumbar Disability, and Psychiatric Disability The Veteran is seeking service connection for bilateral hearing loss, a left knee disability, a right knee disability, a lumbar disability, and an acquired psychiatric disorder, to include a generalized anxiety disorder. The record shows that he was scheduled for VA examinations to assess these conditions in February and March 2018. However, he failed to report to the examinations. At his August 2020 hearing, he testified that he missed the examinations because he was experiencing severe financial hardship and had recently been evicted from his home. Thus, notification of the scheduled examinations went to his former residence. The Board finds that these circumstances constitute good cause to reschedule these VA examinations. As such, a remand is necessary to provide the Veteran another opportunity to undergo a VA examination. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent, and etiology of his bilateral hearing loss. After reviewing the claims file and examining the Veteran, the examiner is asked to respond to the following: Is it at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's bilateral hearing loss onset in service or is otherwise related to service, included his conceded in-service noise exposure? Why or why not? The Veteran's electronic claims file must be accessible for review by the examiner in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed, and the results should be reported in detail. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. 2. Also, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent, and etiology of any left knee or right knee disabilityas well as any lumbar spine disabilityhe may have. After reviewing the claims file and examining the Veteran, the examiner is then requested to respond to the following: Is it at least as likely as not (i.e. 50 percent probability or greater) that any such diagnosed left knee or right knee disability and any such diagnosed lumbar spine disabilityonset in the Veteran's service or is otherwise related to service? Why or why not? The Veteran's electronic claims file must be accessible for review by the examiner in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed, and the results should be reported in detail. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. 3. Also, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent, and etiology of any acquired psychiatric disorder, to include a generalized anxiety disorder, he may have. After reviewing the claims file and interviewing the Veteran, the examiner is asked to respond to the following: Is it at least as likely as not (i.e. 50 percent probability or greater) that any acquired psychiatric disorder, to include a generalized anxiety disorder, onset during the Veteran's service or are otherwise related to such service? Why or why not? The Veteran's electronic claims file must be accessible for review by the examiner in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed, and the results should be reported in detail. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination, if requested, may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.