Citation Nr: 22017172 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-40 370 DATE: March 24, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremity (claimed as numbness in bilateral foot) is remanded. Entitlement to service connection for cardiac condition (claimed as chest condition) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's tinnitus first manifested in service and has been continuous since. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 2007 to December 2008, and from March 2010 to April 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from the September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain "chronic diseases" may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Tinnitus and hearing loss, organic diseases of the nervous system, are a "chronic disease" under 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus that had its onset during active duty service, or is otherwise directly related to the acoustic trauma he experienced on active duty service. After review of the record, the Board finds that service connection for the Veteran's tinnitus is warranted based on continuity of symptomatology. The record includes findings the Veteran has been diagnosed with recurrent tinnitus, as shown in the June 2016 VA examination of record. Additionally, the Board notes the Veteran's competent and credible reports of exposure to acoustic trauma during active service, specifically, from fire fights and daily mortar/artillery attacks noise. See NOD, December 2015; see also Form 9, August 2016. Therefore, with no evidence to the contrary, and resolving any doubt in favor of the Veteran, the Board finds that in-service noise exposure (acoustic trauma) is conceded. In June 2016, the Veteran was afforded a VA examination and medical opinion to assess the current nature and etiology of his tinnitus. Upon examination, the examiner diagnosed the Veteran with recurrent tinnitus. The examiner provided an unfavorable opinion as to the tinnitus condition being etiologically related to the Veteran's active service, rationalizing that the Veteran's tinnitus more than likely could have been caused by his preexisting bilateral hearing loss condition. See C&P Exam, June 2016. The Board finds this opinion and rationale to be inadequate for adjudicate purposes, and thus have little, if any, probative value, as the examiner provided a speculative opinion that the Veteran's tinnitus could have been caused prior to service by his pre-existing bilateral hearing loss, without any further discussion or consideration of the Veteran's competent and credible statements regarding the nature, onset, and continuity of symptomatology. However, the Board notes that, the Veteran's lay statements regarding the nature and onset of his tinnitus symptoms is sufficient to establish service connection. See 38 C.F.R. § 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). A review of the record reflects that the Veteran has consistently and continuously stated that the ringing in his ears first occurred during active duty and has been constant ever since. See NOD, December 2015; see also Form 9, August 2016. As the Veteran is competent to report his symptoms, the Board finds that the probative evidence of record is in support of the Veteran's claim is in approximate balance. The Board concludes that the evidence is in approximate balance, and therefore, the benefit-of-the-doubt rule applies. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremity (claimed as numbness in bilateral foot) is remanded. 2. Entitlement to service connection for cardiac condition (claimed as chest condition) is remanded. The Veteran contends that he currently has numbness in the bilateral foot and a cardiac condition that began during active duty service or is otherwise directly related to his active duty service. The Board notes that, to date, the Veteran has not been provided VA examinations and medical opinions to assess the current nature and etiology of his claimed conditions. Pursuant to VA's duty to assist regarding a claim for disability compensation, the VA must afford a veteran a medical examination and/or obtain a medical opinion when, after review of the record, the VA finds it necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In service connection claims, such as the case here, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board acknowledges the Veteran has the current disabilities of peripheral neuropathy, ventricular tachyarrhythmia, coronary artery disease, and myocardial infarction, based on the assessment of competent and credible VA and private medical evidence in the record. See 38 U.S.C. § 5103A(d)(2)(A); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record also suggests a possible relationship between these current disabilities and the Veteran's active service, as the Veteran contends that his numbness in the bilateral foot and cardiac conditions began during active service, with service treatment records revealing several complaints and treatment for chest issues (such as severe colds and prolonged coughs). See NOD, December 2015; see also Form 9, August 2016; see also VA treatment records, January and March 2011. Given the "low threshold" standard for determining when a VA examination is necessary, the Board finds that the requirements have been met. Consequently, the Board finds that a remand for such examinations are necessary. McLendon, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current bilateral hearing loss is directly related to the acoustic trauma he experienced on active duty service. In June 2016, the Veteran was provided a VA examination and medical opinion to assess the current nature and etiology of his claimed condition. Upon examination, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss, however, provided an unfavorable etiology opinion as to this condition being related to his active duty service, rationalizing that he entered service with hearing loss. The Board notes that the examiner's rationale raises the question as to whether the Veteran had bilateral hearing loss for VA purposes prior to service that was aggravated by such service, and thus, consideration of the presumption of soundness must be addressed. Therefore, the Board finds that a remand is necessary to obtain an addendum VA medical opinion that adequately addresses the theory of presumption of soundness. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his peripheral neuropathy, cardiac conditions, and bilateral hearing loss, and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran VA examinations by appropriate clinicians to determine the nature and etiology of his claimed peripheral neuropathy and cardiac conditions. Additionally, provide the Veteran with an addendum VA medical opinion for his claimed bilateral hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Identify and clearly describe all diagnoses of record related to the Veteran's cardiac conditions, to include ventricular tachyarrhythmia, coronary artery disease, and myocardial infarction. (b) For each diagnosed cardiac condition, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cardiac condition had its onset during any period of active duty or is otherwise etiologically related to his active duty service, to include the in-service complaints and treatment for severe cold and prolonged coughs. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral lower extremity had its onset during any period of active duty or is otherwise etiologically related to his active duty service. (d) Opine whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's bilateral hearing loss existed prior to his entrance into any period of active duty service. Please note: The Court in McKinney v. McDonald, 28 Vet. App. 15 (2016) held that for a hearing defect to be noted at service entrance and be a pre-existing condition, it must meet the criteria set forth in 38 C.F.R. § 3.385. (e) If so, opine whether there is clear and unmistakable (obvious and manifest) evidence that the preexisting bilateral hearing loss did NOT undergo an increase in severity beyond the natural scope of the disability during any period of the Veteran's active duty service. (f) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during any period of active duty or is otherwise etiologically related to his active duty service, to include the conceded in-service exposure to acoustic trauma. Please note: the examiner must discuss the Veteran's service treatment records revealing bilateral hearing loss during the November 2007, March 2010, and June 2010 audiograms. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the Court indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). (g) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (h) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.