Citation Nr: 21041369 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-60 844 DATE: July 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for foot fungus/skin condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a lung condition, to include pneumonia and/or bronchitis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has experienced tinnitus since his separation from service, which has progressed until the present. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1975 to June 1982. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including organic diseases of the nervous system, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For such disease, continuity of symptomatology may serve in lieu of medical nexus. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus was caused by in-service exposure to noise in the Army, and that such condition has been persistent since his active military service. The Veteran testified at a February 2021 Board hearing that he has suffered from ringing in his ears since his separation from service, until the present. He noted that he was never formally diagnosed until the condition became constant. A review of the in-service medical treatment records does not demonstrate treatment, diagnosis, or complaint of tinnitus during service, to include on his entry or exit examination. Likewise, until his initial diagnosis decades after his separation, there are no medical findings pertaining to tinnitus. However, the Veteran testified at his Board hearing that he was never formally diagnosed with tinnitus, though he continued to experience tinnitus since his service, or for as long as he can remember back to his service. With respect to tinnitus, the Veteran is competent to diagnose that condition for himself. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). Therefore, element one of service connection, a current disability, has been met for tinnitus. Similarly, the Board notes that the Veteran served in the United States Army as an armor crewman, on heavy vehicles, where he was exposed to noise and acoustic trauma from various weapons and explosions. To this end, the Veteran's DD-214 noted qualification badges in rifles, pistols, and hand grenades. Thus, exposure to acoustic trauma in service is conceded, meaning that element of service connection, an in-service incurrence of an injury, is met. After a careful review of the evidence of record, the Board finds that the third element, or the nexus element, of service connection is also met, in that the Veteran's tinnitus is etiologically related to his service. In making this determination, the Board notes that Veteran's assertions that he was exposed to acoustic trauma in the Army and has experienced tinnitus since that time; these contentions are found to be capable of lay observation, and thus the Veteran's statements constitute competent evidence. The United States Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes that, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To this end, the Veteran's lay statements with regards to continuity of symptoms since service to also be credible. The Veteran has consistently submitted statements and has testified before the undersigned that he suffered from ringing in his ear since his service, to include not having any significant noise exposure from recreational or occupational activities post-service. The Veteran's lay statements with respect to complaints of tinnitus, therefore, provide probative evidence of chronic symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). The Board, however, does acknowledge that November 2013 VA examination afforded to the Veteran notes that the Veteran's tinnitus was not related to his military service, noting that such condition was related to his hearing loss, and that the Veteran reported that he did not know when his tinnitus started. Regarding this VA examination, the Board finds that the opinion from the VA examiner does not have high probative value, as the crux of the examiner's opinion is based on the fact that the disability was not shown in or shortly after service. However, the Board finds that such rationale is based on an unfounded premise based on the Veteran's inability to report, at the time of the examination, when such tinnitus started. In the Veteran's testimony before the undersigned, the Veteran clarified his position, noting explicitly that he stared experiencing ringing in his ears during service, and persistently suffered from tinnitus since separation from his service. The Board does not find such testimony to be in contradiction to what he may have noted during his VA examination, and as such the Board finds that the Veteran's lay statements of continuity of his symptoms to be more probative. In weighing the conceded exposure to acoustic trauma in service, and the statements from the Veteran regarding ongoing symptomatology of tinnitus for many years, the Board finds that the evidence is relatively equally balanced in terms of whether he had tinnitus related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for foot fungus/skin condition is remanded. With regard to the claims for service connection for a right foot, left and right knee, and foot fungus/skin disabilities, the Board finds that the most recently obtained VA examinations and nexus opinions in October 2017 are inadequate, and a remand is required to obtain addendum opinion for the VA to fulfill its duty to assist the Veteran. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regards to the Veteran's claim for a right foot disability, the Board notes that that October 2017 VA examiner failed to provide any diagnosis of a right foot disability despite noting that the Veteran suffered from diabetic neuropathy of the right lower extremity, with notation of involvement of the Veteran's right foot and symptoms of pain, burning sensations, and numbness. While the VA examiner noted no physiological disability for which to provide a nexus opinion, the examiner failed to provide any etiological analysis regarding the Veteran's diabetic neuropathy. As such, the Board finds that the VA examination is incomplete, and a remand is required for an addendum opinion. In this regard, the Board points out that the Veteran's claim for a right foot disability does, in fact, include the Veteran's diagnosed diabetic neuropathy, which is demonstrated by the record, including during the October 2017 VA examination. The Board notes that the scope of a claim for service connection includes any disability that reasonably may be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, as the Veteran has note pain in his right foot, such has been attributed by the October 2017 examiner to the Veteran's diabetic neuropathy, and as such, the Veteran's claim must be expanded to include this disability. While the Veteran is not service-connected for diabetes, the VA's duty to provide an adequate and complete VA examination to assess the nature and etiology of such disability, to include diabetic neuropathy remains unabridged. As the October 2017 VA examiner did not speak to the etiology of the Veteran's diabetic neuropathy, as it might relate to any aspect of the Veteran's active service, the Board must find that such examination to be inadequate and remand is required. Likewise, with regards to the Veteran's claim for a left and right knee disabilities, and his claim for a right foot fungus/skin disability, the Board finds that the October 2017 VA examination and nexus opinions are equally inadequate. With regards to the knees and foot fungus, the Board finds that neither nexus opinions spoke to, or showed consideration of, the Veteran's lay assertions of ongoing disability and issues since his active service. During the Veteran's hearing, he explicitly noted having issues of pain, swelling, and giving out of his knees since his injury during service. The Veteran noted not only self-treatment using pain medication, but also treatment from the VA in the decades proceeding his separation from service. Likewise, with regards to his foot fungus, the Veteran noted ongoing treatment such as soaking his foot, and even removal of toenails, during the years and decades following his development of his skin condition during service. These lay assertions regarding continued symptoms were not only generally ignored by the VA examiners analysis and opinion, but in fact, the crux of the examiners' rationale was based on the contrary, in that there was no medical evidence of treatment of diagnosis of a knee or foot fungus condition for decades after service. As such, the Board finds that such opinion and rationale to be inadequate, and remand for an addendum opinion is required. 5. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that the same defect with regards to the VA examinations described above, is also relevant to the Veteran's November 2013 VA examination for his claimed hearing loss. Here, again, the VA examiner exclusively relied on the fact that there was no sizable shift in the Veteran's hearing acuity during his active service, to find that the Veteran's noise exposure did not cause his current hearing loss. The VA examiner's analysis and rationale is again incomplete, as it fails to speak to any of the Veteran's assertions that he started experiencing hearing loss during service and has progressively worsened until the present. As such, the Board must find that such opinion to be inadequate, and remand is required for the VA to fulfill its duty to the Veteran. 6. Entitlement to service connection for a lung condition, to include pneumonia and/or bronchitis is remanded. The Veteran has not been afforded a VA examination to confirm his competent complaints of a respiratory disability to include bronchitis and pneumonia, to determine if he has a diagnosis of such disabilities, as related to his reports/notation of symptoms in service. Therefore, a VA examination should be obtained on remand to confirm a current respiratory disability diagnosis that may be associated with claimed in service reports of pneumonia. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has reported that he suffers from a respiratory disability, to include affecting his breathing and causing coughing. To this end, the Veteran also explicitly noted that this condition has been an ongoing condition since his active service where he has documented issues with pneumonia. As such, the Board finds that the Veteran's lay assertions are sufficient to overcome the low threshold of McClendon, and trigger the VA's duty to afford the Veteran a VA examination to assess the nature and etiology of his claimed disabilities. 7. Entitlement to a TDIU is remanded. The consideration of entitlement to TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain and retain substantially gainful employment. 38 C.F.R. § 4.16. The matter of TDIU is thus inextricably intertwined with the Veteran's service connection claims being remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore also required. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file. To this end, at least two attempts should be made to acquire outstanding VA treatment information from those medical centers in which the Veteran identified during his hearing to have received treatment from, to explicitly include VA treatment centers in Mt. Carmel, Ohio, and New Richmond. 2. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed right foot disability, to include his diagnosed diabetic neuropathy of the lower extremity. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right foot disability is related to active service. The examiner should provide a rationale for the opinion, that explicitly reconcile any opinion with those already of record. 3. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed knee disabilities, to include a diagnosis(es) . All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings and must address both knees. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed knee disability is related to active service. The examiner should provide a rationale for the opinion, that explicitly addresses the Veteran lay contentions and his in-service injuries. All findings should be reported in detail and a complete rationale should be provided. 4. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed right foot fungus/skin condition, to include a diagnosis. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right foot fungus condition is related to active service. The examiner should provide a rationale for the opinion, that explicitly addresses the Veteran lay contentions and his inservice incurrence. All findings should be reported in detail and a complete rationale should be provided. 5. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed bilateral hearing loss. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any bilateral hearing loss is related to active service. The examiner should provide a rationale for the opinion, that explicitly addresses the Veteran lay contentions and his hearing loss arose during service, and has persisted until the present. All findings should be reported in detail and a complete rationale should be provided. 6. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed respiratory condition, to include a diagnosis. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed respiratory condition is related to active service. The examiner should provide a rationale for the opinion, that explicitly addresses the Veteran lay contentions and his inservice incurrence. All findings should be reported in detail and a complete rationale should be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.