Citation Nr: 21042660 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-63 236 DATE: July 13, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a chronic sinus disorder is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for ar right knee disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus was at least as likely as not incurred during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1989 to November 1993, including service in Southwest Asia. The current appeal comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied entitlement to service connection for each of the claimed disabilities on appeal. In February 2020, the Veteran withdrew a prior request to be scheduled for a Board hearing. See 38 C.F.R. § 20.603(e). Service Connection for Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Presumptive service connection may be granted for certain chronic diseases, including certain organic diseases of the nervous system (which specifically includes tinnitus), when manifested to a compensable degree within one year from separation from service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; Fountain v. McDonald, 27 Vet. App. 258, 259 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In the current appeal, the Veteran specifically contended during VA examination and in lay statements that his tinnitus had its onset during service due to exposure to hazardous military noise while completing training on the firing range, during his basic training. He also reported being exposed to hazardous military noise as a result of repairing and launching F-16s and other aircraft during Operation Desert Shield. He maintained that the hearing protection provided was inadequate. In resolving reasonable doubt on certain elements of the claim in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met. With respect to the current disability requirement, the Veteran's recurrent tinnitus was noted in the June 2014 VA examination report and in private ENT clinical treatment records. At his examination, the Veteran specifically reported that his tinnitus began in the early 1990s, during basic training. This evidence is sufficient to support a finding that the Veteran has a current tinnitus disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (providing that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when... a layperson is competent to identify the medical condition...."); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that "ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom"). As to the matter of in-service noise exposure, the Veteran's DD Form 214 documents his military occupational specialty (MOS) as an aircraft structural maintenance journeyman and his receipt of the small arms expert marksmanship ribbon, which presumably required extensive firing range training. The DD Form 214 also documents his service in support of Operation Desert Shield/Storm. His private ENT clinical records document his report of extensive noise exposure during his active service. Thus, the evidence supports the Veteran's reports of exposure to significant hazardous military noise during service. As for the matter of a nexus between current tinnitus and the Veteran's service (particularly, his conceded exposure to hazardous military noise), in the June 2014 VA examination report, the examiner opined that the Veteran's tinnitus was less likely than not caused by, or a result of, military noise exposure. In providing this opinion, the examiner relied on the assertion that he did not have a significant threshold shift in hearing of either ear during his active service, and that he was unable to attribute the onset of tinnitus to a specific military noise-related event. The examiner, however, appeared to disregard the Veteran's assertion that tinnitus began during service without providing any reasons for doing so. Thus, the examiner's opinion is of limited probative value. See Dalton v. Peake, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the appellant's reports of symptoms and history). In contrast to the examiner's findings, the Veteran has credibly reported that he experienced an onset of tinnitus symptoms during his active service, in particular after participating in firearms training during his period of basic training. He also attributed tinnitus to significant noise exposure in the process of repairing and launching multiple types of aircraft. The Board concludes that his lay statements of noticing an onset of tinnitus during service, including as reported at the June 2014 VA examination, supports a finding that he experienced an onset of tinnitus in service and has experienced a continuity of tinnitus symptomatology since his in service exposure to hazardous military noise. In reaching this finding, the Board notes that the Veteran, as a layperson, is competent to report on the onset and continuity of his tinnitus symptomatology. See 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); Charles, supra. Overall, the weight of the evidence supports a finding that the Veteran's tinnitus began as a result of exposure to hazardous military noise during his active service. The Veteran is competent to report the onset of his tinnitus symptoms as a result of such noise exposure during service, and the medical evidence supports his assertions of being exposed to hazardous noise during his active service and of having tinnitus symptoms since service. The Board finds there is insufficient reason to question the credibility of the Veteran's reports regarding the onset and presentation of his symptoms. See Layno, 6 Vet. App. at 470. Thus, resolving reasonable doubt in the Veteran's favor on certain elements of this claim, the Board finds that he has experienced tinnitus symptoms since service. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for bilateral hearing loss Similar to his tinnitus, the Veteran contends that his bilateral hearing loss developed as a result of exposure to hazardous military noise during his active service. He has also contended, however, that his hearing loss is associated with Meniere's syndrome, which reportedly has presented symptoms as early as in 1996, and which diagnosed was confirmed in the Veteran's private ENT records. The Veteran contended that his Meniere's syndrome began as a result of hazardous noise exposure during service. Further, review of the Veteran's service treatment records (STRs) reveals that he presented with left ear hearing loss for VA purposes upon his entry into active service. In this regard, audiometric testing results revealed an auditory threshold of 40 decibels at the 4000 Hertz frequency on his September 1989 enlistment examination report. See 38 C.F.R. § 3.385. Results of subsequent audiometric testing indicate that his left ear hearing impairment was more severe in nearly all relevant frequencies, on at least one occasion, as indicated in October 1992 audiometric testing results. Thus, an opinion is necessary to determine whether the Veteran's hearing loss was clearly and unmistakably not aggravated during his period of active service. While the etiology of the Veteran's hearing loss was addressed in the June 2014 VA audiological examination, the examiner did not address the Veteran's preexisting hearing loss or contentions pertaining to Meniere's syndrome. Thus, given the Veteran's contentions, and the evidence of preexisting hearing loss becoming more severe during service, remand is warranted to afford the Veteran a new VA audiological examination to obtain adequate opinions addressing the nature and etiology of his current hearing loss. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 Service connection for chronic sinus disorder The Veteran was afforded a VA examination for his claimed sinus condition in June 2014. The examiner acknowledged the Veteran's diagnosis of sinusitis in 1992, but opined that the claimed condition was less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness. As a basis for this opinion, the examiner concluded that the evidence was more suggestive of seasonal allergic rhinitis. The examiner did not, however, explain why the Veteran did not have a sinusitis diagnosis, and did not clearly provide an opinion as to the etiology of the apparent allergic rhinitis. Notably, the Veteran's private ENT records indicate that he was diagnosed with chronic sinusitis, in addition to allergic rhinitis. Accordingly, due to the deficiencies in the June 2014 VA examination report, and clear evidence of diagnosis of sinusitis following the examination, the Board finds that remand is warranted to schedule the Veteran for a new VA examination to determine the nature and etiology of all current sinus conditions. See id. Service connection for neck, right and left shoulder, and right knee disabilities With respect to his claimed neck, right and left shoulder, and right knee disabilities, the Veteran has contended that these claimed disabilities were the result of a fall that he incurred during service (when he was painting an aircraft during a night shift). He reportedly snagged his knee first, and then fell to the hangar floor, eventually landing on his neck and right shoulder. He maintained that he was treated with Motrin. He also noted, due to the downsizing and eventual closure of his assigned base at the time of the incident, that he did not receive proper medical treatment and that his records were not properly maintained. Review of the Veteran's STRs reveals that he did report back pain at one point during service, with a noted history of falling off of a jet in a paint hangar. Although the record does not contain medical evidence of post-service treatment for these claimed conditions, the Veteran is competent to report having orthopedic symptoms involving his neck, shoulders, and right knee; to report experiencing right shoulder rotator cuff pain and bone spurs; and to report that he underwent surgery to correct disc damage in his cervical spine. Layno, supra. Thus, a remand of these claims is required to afford the Veteran a VA examination to diagnose all current neck, right and left shoulder, and right knee disabilities, and to obtain opinion as to the nature and etiology of such disabilities. See id. Accordingly, these matters are hereby REMANDED for the following action: 1. Ask the Veteran to provide VA with authorization, on VA Form 21-4142, to obtain all available private treatment records pertinent to his claims remaining on appeal, to include treatment for right shoulder rotator cuff pain, bone spurs, and cervical spine surgery. Make two requests for all authorized records, unless it is clear after the first request that a second request would be futile. 2. Then, arrange for the Veteran to undergo new VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The claims file must be made available to the examiner in conjunction with this examination. Any testing deemed necessary, to include audiometry and speech discrimination testing, should be accomplished. After review of the record and completion of the examination (including any necessary testing), the examiner should: (a.) Provide an opinion as to whether the Veteran's left ear hearing loss, which was noted on his enlistment examination, and appears to have undergone an increase in severity during service, was clearly and unmistakably not aggravated by his period of active service. (b.) For the Veteran's right ear hearing loss, and for left ear hearing loss (if not clearly and unmistakably not aggravated by service), the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that any such hearing loss had its onset during service, or is otherwise medically-related to his service, to include exposure to acoustic traumas/hazardous military noise during service, including as a result of Meniere's syndrome, which the Veteran contends resulted from such in-service hazardous noise exposure, as detailed above. In addressing the above, the examiner is advised that the absence of evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Thus, the examiner should consider a delayed onset theory of causation of hearing loss. The examiner must also consider and discuss all pertinent medical evidence and lay assertions, to include all evidence of increasing left ear hearing loss during service, evidence of significant exposure to hazardous military noise during service, and the Veteran's assertions as to the nature, onset, and continuity of his hearing loss symptoms, including by means of diagnose Meniere's syndrome. The examiner is further advised that the Veteran is competent to report his hearing loss symptomatology and the onset of hearing impairment. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Also, arrange for the Veteran to undergo a new VA sinus conditions examination. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all sinus conditions, to include allergic rhinitis and chronic sinusitis, currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). (b.) For each identified disability, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include multiple noted incidents of sinus problems, sinusitis, and rhinitis during service. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include significant post-service evidence of treatment for chronic sinusitis, and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of relevant symptoms. The examiner is advised that the Veteran is competent to report his sinus conditions symptoms, and the onset of such symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 4. Also, arrange for the Veteran to undergo VA examination of his neck, right and left shoulder, and right knee. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all neck, right and left shoulder, and right knee disabilitiesincluding any condition that is manifested by pain and results in functional impairment of earning capacitycurrently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability/condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include the noted incident where the Veteran fell from an aircraft onto the hangar floor, while painting the aircraft during a night shift. In addressing the above, the examiner(s) must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions pertaining to his in-service injury, and as to the nature, onset, and continuity of relevant symptoms, and his assertions of suffering from current rotator cuff pain, bone spurs, and of having undergone cervical spine surgery. The examiner is advised that the Veteran is competent to report his orthopedic symptoms, including pain, and the onset of such symptoms and resulting treatment. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The absence of documented evidence of symptoms in, or shortly after, service should not serve as the sole basis for a negative opinion for a claimed disability. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations 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 these matters. 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 Michael Wilson, 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.