Citation Nr: 22010695 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-60 803 DATE: February 24, 2022 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to a rating in excess of 10 percent for left wrist fracture (exclusive of periods of temporary total rating from April 21, 2017 to June 30, 2017, and from November 17, 2017 to February 28, 2018) is remanded. Entitlement to a compensable rating for a left wrist scar, status post arthroscopic surgery, is remanded. FINDING OF FACT It is at least as likely as not that the Veteran's tinnitus is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 in the U.S. Navy from March 1994 to November 1998. Her decorations include the National Defense Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In a December 2019 decision, the Board, in pertinent part, remanded the Veteran's claims for higher ratings for her service-connected left wrist disability and associated scar to the agency of original jurisdiction (AOJ) for additional development. The Board also denied service connection for tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied service connection for tinnitus and remanding that matter for readjudication. Meanwhile, after taking further action, the AOJ confirmed and continued the prior ratings for the Veteran's service-connected left wrist disability and associated scar and returned those matters to the Board. See July 2020 Supplemental Statement of the Case (SSOC). In May 2021, the Board remanded all three of the issues currently on appeal to the AOJ for additional development and due process action. After taking further action, the AOJ confirmed and continued the prior determinations and returned all three issues to the Board. See November 2021 SSOC. Entitlement to service connection for tinnitus The Veteran seeks to establish service connection for tinnitus. She asserts that she has recurrent symptoms of tinnitus that began in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury 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). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent or more during the one-year period following her separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by: (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, there is no dispute that the Veteran has tinnitus. See June 2017 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ); November 2021 VA Hearing Loss and Tinnitus DBQ. For VA purposes, tinnitus is recognized as a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears in service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). Thus, the requirement of a current disability has been met. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. She has reported noise exposure from her time aboard the USS Abraham Lincoln as a member of the infantry gun crew. See November 2021 VA Hearing Loss and Tinnitus DBQ. Her statements in that regard are wholly consistent with the circumstances and conditions of her service. Therefore, the second element of service connection has also been met. The remaining question is whether her disability is related to service, to include her in-service exposure to noise. The Veteran underwent a VA audiology examination in November 2021. The examiner confirmed that the Veteran was suffering from recurrent tinnitus. The examiner opined, however, that it was less likely than not that the Veteran's tinnitus was caused by service. The examiner based her opinion on the fact that there was no evidence of any complaints of tinnitus during service and that the Veteran indicated that she had no hearing loss or ear trouble at service separation. Significantly, the Veteran has reported the onset of tinnitus in service, with continuity of symptoms since. See November 2021 VA Hearing Loss and Tinnitus DBQ (reporting onset of tinnitus in 1994 during her time aboard the USS Abraham Lincoln with her berthing located directly below the flight deck). The Board finds her statements concerning onset and continuity of symptomatology to be competent and credible. Moreover, inasmuch as tinnitus is a chronic disease capable of lay observation, it can be service connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. The Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran's tinnitus is etiologically related to her service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. The benefit-of-the-doubt will be applied in her favor. 38 U.S.C. § 5107(b). The appeal of this issue is granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, another remand of the remaining issues on appeal is necessary to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a higher rating for left wrist fracture 2. Entitlement to a higher rating for a left wrist scar In its May 2021 remand, the Board noted that the AOJ had failed to comply with a prior remand directive that the Veteran's claims for higher ratings for her service-connected left wrist disability and associated scar be readjudicated with specific consideration of the report of a pertinent VA medical examination of the wrist that was undertaken in October 2019. The AOJ was requested to readjudicate the issues with consideration of all of the evidence associated with the claims fileto particularly include the October 2019 VA medical examination reportand, if any benefit sought was not granted, to issue the Veteran a SSOC. On remand, the AOJ issued another SSOC to the Veteran in November 2021. However, as previously, the SSOC did not reflect consideration of the October 2019 VA medical examination report. Accordingly, pursuant to Stegall, and in order to afford the Veteran every consideration, her rating claims must again be remanded to the AOJ for consideration of that report, and if any benefit sought is not granted, for issuance of a new SSOC. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Readjudicate the Veteran's claims for higher ratings for her service-connected left wrist disability and associated scar with consideration of all evidence associated with the claims file, especially the October 2019 VA medical examination report pertaining to the wrist. If any benefit sought is not granted, furnish the Veteran and her representative a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. The SSOC, if one is required, must specifically reflect consideration of the October 2019 VA medical examination report. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.