Citation Nr: 22013271 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-02 985A DATE: March 9, 2022 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral upper extremity disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The current tinnitus disability is related to an in-service event or injury. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. § § 1110, 1131, 1137, 5107; 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304, 3.307, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 27, 1976 to May 23, 1980 and from October 1981 to October 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. Regarding the claim for service connection for tinnitus, neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Service Connection for Tinnitus. The Veteran contends that service connection is warranted for tinnitus. After review of the evidence, both lay and medical, the Board agrees and finds that service connection for tinnitus is granted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). An April 2017 VA examiner diagnosed the Veteran with tinnitus. Thus, the Veteran has a current disability. The Veteran's service treatment records are silent for any reports of, or treatment for, tinnitus. However, the Veteran's DD 214 reflects his MOS was 11B Infantryman, as such, noise exposure during service is conceded. In April 2017, the Veteran underwent a VA examination to determine the etiology of any tinnitus. The Veteran reported recurrent tinnitus that he indicated was every once-in-a-while. The VA examiner diagnosed the Veteran with tinnitus but indicated it was not clinically significant. During the March 2021 Board hearing, the Veteran reported that the tinnitus began during service. He further clarified that he first noticed constant ringing in his ears during service. The Veteran is competent to report that tinnitus was incurred in service and that it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current tinnitus. However, the competent evidence as to the etiology of the Veteran's tinnitus is in conflict. While the VA examination report concluded that the Veteran's tinnitus was not related to service, the Veteran has explained that the tinnitus actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Bilateral Knee and Uppers Extremities. The Veteran contends that service connection is warranted for bialteral upper extremity and knee disabilities. After review of the evidence, both lay and medical, a remand is necessary to allow for a fully informed decision. The Veteran service treatment records are silent for any treatment for, or diagnosis of, a bialteral knee disability. However, a September 1984 treatment notes shows the Veteran reported pain in the left forearm and was diagnosed with a possible muscle strain. The Veteran was placed on an eight day upper extremity profile that limited activity. He declined an examination at service separation. The Board notes that the Veteran submitted a May 2021 opinion indicating an upper limb disability was potentially related to service. However, a review of the document indicates the Veteran was not examined in conjunction with opinion and the rationale appears incomplete. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been provided with a VA examination to determine the etiology of either the bilateral knee disabilities or the bilateral upper extremity disabilities, therefore, a remand is necessary. 2. Glaucoma. The Veteran contends that service connection is warranted for glaucoma. After review of the evidence, both lay and medical, a remand is necessary to allow for a fully informed decision. The Veteran's service treatment records are silent for diagnosis of, or treatment for, glaucoma. His entrance examination noted defective near vision. During his March 2021 Board hearing, the Veteran reported watery eyes in service that the did not seek treatment for while on active duty. He also indicated that his near-sightedness was a risk factor for glaucoma. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been provided with a VA examination to determine the etiology of any current eye disabilities, therefore, a remand is necessary. 3. Bilateral Hearing Loss. The Veteran contends that service connection is warranted for bialteral hearing loss. After review of the evidence, both lay and medical, a remand is necessary to allow for a fully informed decision. In April 2017, the Veteran underwent a VA examination to determine the etiology of any current hearing loss disability. The examination did not show hearing loss for VA purposes, however, the Veteran has indicated that his hearing has worsened. While the passage of time alone does not warrant a new examination, given the Veteran's potential complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records since January 2019 with the electronic claims file. 2. Schedule the Veteran for a VA orthopedic examination to determine the etiology of any upper extremity disabilities. After reviewing the claims file, the VA examiner should offer the following opinions: Is the evidence in at least an approximate balance that the any current upper extremity disabilities had their onset in service, are otherwise related to his active service, or had onset within one year of separation from service? In rendering the opinions requested above, the VA examiner must comment on the May 2021 opinion by Dr. A.C. and the diagnosis of complex regional pain syndrome of the bialteral upper extremities, as well, as the Veteran's in-service treatment for forearm pain and reports of continuous pain since. 3. Schedule the Veteran for a VA orthopedic examination. After reviewing the claims file, the VA examiner should offer the following opinions: Is evidence in at least an approximate balance that the any current bilateral knee disabilities had their onset in service, are otherwise related to his active service, or had their onset within one year of separation from service? In rendering the opinions requested above, the VA examiner must address the Veteran's reports of bialteral knee pain during and continuously following service. 4. Schedule the Veteran for a VA eye examination. After reviewing the claims file, the VA examiner should offer the following opinions: Is evidence in at least an approximate balance that the any current eye disability, including glaucoma, had onset in service, is otherwise related to his active service, or had its onset within one year of separation from service? In rendering the opinions requested above, the VA examiner must address the Veteran's reports of watery eyes in-service and defective near vision diagnosed during service. 5. Schedule the Veteran for a VA audiology examination. After reviewing the claims file, the VA examiner should offer the following opinions: Is evidence in at least an approximate balance that the any current hearing loss had onset in service, is otherwise related to his active service, or had its onset within one year of separation from service? In rendering the opinions requested above, the VA examiner should assume, as fact, that the Veteran was exposed to loud noises in service and must address any in-service shifts in hearing. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.