Citation Nr: 21032765 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-59 271 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral recurrent tinnitus is granted. REMANDED Entitlement to a compensable rating for service-connected fracture of the right 5th metacarpal is remanded. Entitlement to a compensable rating for service-connected tension headaches is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for bilateral hearing loss (BHL) is remanded. Entitlement to service connection for right arm/hand radiculopathy to include as secondary to the service-connected fracture of the right 5th metacarpal is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's bilateral recurrent tinnitus began during active service and has been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral recurrent tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from June 1986 to March 1992. This case comes before the Board on appeal of a September 2015 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live videoconference. A transcript of the proceeding has been associated with the record. Entitlement to service connection for bilateral recurrent tinnitus Here, the Veteran contends that his bilateral recurrent tinnitus had its onset during service and persists presently. Based on the evidence, the Board agrees. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In the March 2021 hearing, the Veteran testified that he experienced ringing in his ears during service, which continued presently. The Veteran stated that the ringing is almost constant sometimes louder than other times. He explained that when he tries to go to sleep, the ringing is loud because his surroundings are quiet. Moreover, the Veteran explained that his military occupational specialty (MOS) was as a Morse code operator. As a Morse code operator, he had on headphones for eight hours a day for his six years of service listening to Russian radio. The Veteran believes his tinnitus and hearing loss was caused by his MOS. He added that although he had been out of the military since 1992, he could still hear Morse code today. The Board notes that the Veteran is competent to report that he first experienced symptoms of tinnitus during active service and that the symptoms have continued since that time, as tinnitus is a condition that is subjective and capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to attest to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). The August 2015 VA examiner opined that it was less likely than not that the Veteran's tinnitus was related to noise exposure in service. She reasoned that the Veteran's audiometry was normal on separation and normal during audiograms in 1987 and 1989. She concluded that there must be a nexus of evidence of auditory damage to relate the current, intermittent tinnitus to military noise exposure. However, the Board finds the Veteran's report of tinnitus occurring during and since service to be sufficiently credible to support the claim. As tinnitus is a purely subjective disability, the Board finds the evidence is at least in equipoise as to whether the current tinnitus arose in service. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. §5107 (b). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to a compensable rating for service-connected fracture of the right 5th metacarpal is remanded. 2. Entitlement to a compensable rating for service-connected tension headaches is remanded. Here, the Veteran was last afforded VA examinations for his tension headaches and right 5th metacarpal in September 2015. Generally, a stale examination is not enough to require a remand for a new examination; however, the Veteran reported worsening pain in his right hand as well as an increase in the severity of his headaches, which required more medication. See March 2021 hearing testimony. VA's duty to assist includes providing a new medical examination when a veteran assert's or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran's right finger disability and tension headaches. 38 C.F.R §§ 3.326, 3.327 (2019). 3. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Here, the Veteran underwent a VA examination in August 2015 to determine the nature and etiology of his claimed TBI. During the examination, the Veteran reported that he was assaulted with a baseball bat while on active duty resulting in a mandibular fracture. The examiner stated that there was no documentation of loss of consciousness or alteration of consciousness or amnesia for the event. Therefore, the examiner concluded that it was less likely than not that the Veteran suffered a TBI as a result of the incident. The examiner added that there were no claims or sequelae other than possibly memory problems and headaches, which appear to be secondary to the Veteran's PTSD. The Board notes that private treatment records submitted after the VA examination showed that the Veteran loss consciousness as a result of the assault and suffered from an orbital fracture in addition to the mandible fracture. As these records are pertinent to the Veteran's claim and directly contradict the assertion made by the August 2015 VA examiner, remand for an addendum opinion is warranted. 4. Entitlement to service connection for bilateral hearing loss (BHL) is remanded. Here, the Veteran underwent a VA examination in August 2015. The examination revealed that the Veteran's hearing loss did not meet the criteria of hearing loss for VA purposes. However, the Veteran testified that his hearing has worsened and given his MOS as a Morse code operator, there is favorable evidence of military noise exposure. As such, the Veteran should be afforded a VA examination to determine whether his hearing loss meets the criteria of hearing loss for VA purposes and whether such hearing loss was caused by his active duty service. 5. Entitlement to service connection for right arm/hand radiculopathy to include as secondary to the service-connected fracture of the right 5th metacarpal is remanded. Here, in the September 2015 VA examination, the Veteran reported a history of constant numbness/tingling of the right small finger that started with his right 5th metacarpal fracture. On examination, the Veteran had mild paresthesias and numbness of his right upper extremity and decreased sensation in his right hand and fingers. The examiner remarked that there was a slight decrease in perception of light tough thought secondary to his right 5th metacarpal fracture. The examiner added that it was as likely as not a sensory neuropathy of branch ulnar nerve. However, the Veteran was ultimately denied service connection for right upper extremity (RUE) radiculopathy. Based on the evidence, a remand is necessary to obtain a medical opinion on the nature and etiology of the Veteran's ulnar nerve sensory neuropathy. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his right finger disability and tension headaches. 3. Additionally, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss. 4. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's claimed traumatic brain injury (TBI). 5. Obtain a VA medical opinion to determine the nature and etiology of the Veteran's right ulnar nerve sensory neuropathy. 6. The VA examiner(s) must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner(s). All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner(s) should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's TBI, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ulnar nerve sensory neuropathy had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (d.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ulnar nerve sensory neuropathy is caused by his service-connected right finger disability. (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ulnar nerve sensory neuropathy is aggravated (i.e. worsened beyond normal progression) by his service-connected right finger disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 7. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 8. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.