Citation Nr: 21042324 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-41 700A DATE: July 12, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for liver condition is remanded. Entitlement to total disability due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's tinnitus is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1979 to September 1982. In January 2021, the Veteran testified at a Board hearing. The transcript is of record. The Board notes that the issues of entitlement to increased ratings for peripheral neuropathy and degenerative arthritis of the right foot are currently on appeal and will be addressed in a separate decision. 1. Entitlement to service connection for tinnitus The Veteran contends that he began experiencing ringing in his ear after a bomb exploded near him during a training exercise. For the following reasons, the Board finds service connection is warranted. For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, to include tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b) (2017). The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, a current diagnosis of tinnitus is established. The Veteran testified that he was blown up during a combined armed exercise, which resulted in ringing in the ears. According to the Veteran, the ringing in his ears began during active service and has continued ever since. The Board finds the Veteran's testimony competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology). Thus, exposure to acoustic trauma during active service is conceded. Lay evidence is competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran provided credible testimony establishing continuous ringing in his ears since active service; therefore, the Board finds that tinnitus is etiologically related to the Veteran's military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss The Veteran attended a VA examination for hearing loss in May 2014. The examination revealed hearing loss for VA purposes in the right ear only. The examiner opined that the hearing loss was not at least as likely as not caused by or the result of an event in-service as there were no significant threshold shifts or report of change in hearing in service records and the Veteran reported recreational noise exposure. The Board finds the opinion inadequate as the examiner relied on an absence of evidence noting that the Veteran's service treatment records do not reveal significant threshold shifts at discharge. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Additionally, 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, the examiner did not provide a rationale with clear conclusions, supporting data and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, the examiner provided a list citing no significant threshold shifts and recreational noise exposure without further explanation. As such, a remand is necessary for a new VA examination and opinion. 2. Entitlement to service connection for liver condition The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record establishes a current diagnosis of a mass on the liver and confirmed service at Camp Lejeune during a period of time associated with contaminated water. Even if presumptive service connection due to exposure to contaminated water is not warranted, service connection may be established on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As such, the record contains sufficient evidence to trigger the VA's duty to assist by providing a VA examination. Additionally, at the hearing the Veteran identified potential relevant outstanding private treatment records related to his liver condition. A remand is required to allow VA to obtain authorization and request these records. 3. TDIU The Veteran claims entitlement to TDIU based on his service-connected conditions to include peripheral neuropathy of the right lower extremity and degenerative arthritis of the right foot. As the issues of entitlement to increased ratings for peripheral neuropathy and degenerative arthritis of the right foot are currently on appeal and to be addressed in a separate decision, the claim for TDIU is dependent by the outcome of these claims. Accordingly, since the claim for TDIU is inextricably intertwined with the issues to be addressed in the separate decision it must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include for his liver condition. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Obtain updated VA treatment records from December 2019 to present. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 4. After the above development is completed, schedule the Veteran for a VA examination with a medical professional with appropriate expertise to determine the nature and etiology of hearing loss. The examiner should review the Veteran's claims file. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss is related to his active service or is caused by or aggravated by military service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that normal hearing at separation is not sufficient to serve as a rationale as 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms of bilateral hearing loss from in-service injury to the present. The examiner must specifically consider and discuss the Veteran's in-service exposure to acoustic trauma and continuity of symptomology since service. The opinion and rationale should reflect such consideration. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Schedule the Veteran for a VA examination with a medical professional with appropriate expertise to determine the nature and etiology of liver condition. The examiner should review the Veteran's claims file. Based on a review of the record, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's liver condition is related to active service or is caused by or aggravated by military service, to include due to exposure to contaminated water at Camp Lejeune. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner should consider and address the lay statements of record. The fact that the liver condition may not be a disability presumed to be related to contaminated water at Camp Lejeune is not sufficient to serve as a rationale in this case. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.