Citation Nr: 22017276 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-62 665 DATE: March 24, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lower back condition, to include degenerative arthritis, lower extremity radiculopathy, and sciatica, is remanded. Entitlement to service connection for a respiratory/sinus condition (claimed as rhinitis), is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDING OF FACT The evidence persuasively favors that the Veteran's tinnitus is etiologically related to his active-duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air National Guard from May 1992 to August 1992, from June 1995 to June 1995, and in the Air Force from August 1997 to October 1999 and from November 2010 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran had a virtual Board hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the record. Regarding the respiratory/sinus disability claim, the Board notes that the Veteran's initial service connection claim was for rhinitis; and the RO denied the claim as such. However, in Clemons v. Shinseki, the United States Court of Appeals for Veteran's Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for a respiratory/sinus condition. Additionally, the Board notes that during his October 2021 Board hearing, the Veteran noted that his "degenerative arthritis" claim on appeal was an additional claim for a lower back condition. The Board has thus recharacterized and combined the low back condition and degenerative arthritis issues on appeal as a single claim seeking entitlement to service connection for a lower back condition to include degenerative arthritis, radiculopathy, and sciatica. See Id. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after 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). In determining whether service connection is warranted for a disability, 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 the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) Tinnitus The Veteran seeks service connection for tinnitus, which he contends is etiologically related to his active service. The medical evidence confirms a current diagnosis of tinnitus. See April 2016 Pasadena ENT & Allergy treatment report. The central issue that must be resolved is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran's available service treatment records (STRs) contain no complaints, treatment, or diagnosis of tinnitus. However, the Board concedes the Veteran's exposure to excessive noise in service. Additionally, the Board notes that the Veteran's post-service treatment records document that the Veteran complained of tinnitus. See April 2016 Pasadena ENT & Allergy treatment note. During the Veteran's October 2021 Board hearing he reported that he began to notice a ringing in his ears during his active-duty service period from 1997 to 1999. The Veteran continued his MOS had him working on the flight line, often boarding aircraft and processing personnel and equipment while exposed to plane engines without hearing protection. The Veteran also noted that after his deployment to Afghanistan the ringing in his ears worsened and makes it difficult to fall asleep. The Veteran submitted several lay buddy statements. In a statement dated March 2019, the Veteran's father reported that the Veteran complained of ringing in his ears and a lack of hearing protection while working on the flight line. In another statement dated March 2019, S.G., a solider who worked alongside the Veteran reported that the Veteran would meet aircraft on the flight line and was repeatedly exposed to aircraft without hearing protection. Finally, in a statement dated April 2019, R.V., the Veteran's team chief while he was in service reported that the Veteran's duties included meeting all aircraft on the tarmac while their engines were still on without the use of proper ear protection. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. The Board has considered the Veteran's lay statements in support of his claim. He was competent to report symptoms, such as ringing or buzzing in his ears, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran reported that he experienced ringing in his ears which began while he was in service, worsened after his deployment to Afghanistan, and continued to present day. The Board finds the Veteran's lay statements credible in this regard. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to describe his tinnitus symptomatology. Given the above, the Board finds that the totality of the evidence is at least evenly balanced as to whether the Veteran's tinnitus is etiologically related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving any doubt in the Veteran's favor, because tinnitus is a disability capable of lay observation, and because his tinnitus symptoms have continued from service to the present, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND Initially, the Board also notes that the record for review may be incomplete. During the Veteran's October 2021 Board hearing, he testified that he has sought private treatment for his bilateral shoulders in Bedford, New Hampshire; private treatment for his lumbar spine from a chiropractor, Dr. F., in St. Petersburg, Florida, as well as multiple steroid injections from urgent care centers and treatment at the Elliot Health System in Manchester; and private treatment for his claimed sinus/respiratory disability. However, these records have not been associated with the claims file. When requesting records not in the custody of a federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. The Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with the VA in developing his claims, consistent with the directives discussed below. Lower Back Condition To date, the Veteran has not been afforded VA examinations to address the etiology of his claimed lumbar spine conditions. The Veteran's STRs do contain treatment for lower back pain while the Veteran was in active-duty service. Additionally, the Board notes that the Veteran has reported experiencing lower extremity radiculopathy/sciatica and pain since service to present day. Based on the foregoing, the Board finds an examination and medical opinion is necessary to determine whether the Veteran's currently diagnosed conditions are etiologically related to his active military service. Respiratory/Sinus Condition. To date, the Veteran has not been afforded VA examinations to address the etiology of his claimed respiratory/sinus conditions. The Veteran's STRs do contain treatment for sinus conditions/upper respiratory infections while the Veteran was in active-duty service. Additionally, the Veteran testified at his October 2021 Board hearing that his current sinus/respiratory disabilities may be etiologically related to his Southwest Asia environmental exposures, to include burn pits, during his service in Afghanistan. Based on the foregoing, the Board finds an examination and medical opinion are necessary to determine whether the Veteran has any currently diagnosed sinus/respiratory disabilities, which were etiologically related to his active-duty service, to include as due to his Southwest Asia environmental exposures. Bilateral Shoulders To date, the Veteran has not been afforded VA examinations to address the etiology of his claimed bilateral shoulder conditions. The Veteran has reported experiencing pain in his bilateral shoulders since service to present day. Further, the Veteran testified at his October 2021 Board hearing that he was diagnosed with calcific tendonitis, and that he was told by a doctor that this could be due to his repeated heavy lifting in service. Based on the foregoing, the Board finds examinations and medical opinions are necessary to determine whether the Veteran's currently diagnosed conditions are etiologically related to his active military service. Additionally, the Board notes that the Veteran's entrance examination noted that he had broken his left clavicle prior to joining service. As such, the Board finds an additional opinion is warranted regarding whether the Veteran's active-duty service aggravated his pre-existing injury beyond the course of its natural progression. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate his complete private treatment records discussed by the Veteran in his October 2021 Board hearing. If needed, the RO should contact the Veteran and ask him to better identify and/or submit the records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination, with an examiner with sufficient expertise to determine the nature and etiology of his claimed lower back condition. The claims file must be reviewed, and such review should be noted in the opinion. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to the following: - Whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed lower back conditions (to include lower extremity radiculopathy/sciatica) are etiologically related to the Veteran's period of service. Specifically, the examiner should address whether it is at least as likely as not that the Veteran's claimed disabilities are etiologically related to his repeated lifting of heavy equipment, gear, loading pallets, storage containers, etc. while on active-duty service. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiners must discuss and consider the Veteran's competent lay statements and the competent lay buddy statements of record. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed Additionally, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, if no diagnosis is rendered for the Veteran's lumbar spine, the examiner should provide etiological opinions as to whether or not the Veteran's pain causes functional limitation, and if so, if the pain is at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's period of service. 3. Also, schedule the Veteran for a VA examination, with an examiner with sufficient expertise to determine the nature and etiology of his sinus/respiratory conditions. The claims file must be reviewed, and such review should be noted in the opinion. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to the following: - Whether the Veteran has any diagnosed sinus/respiratory disabilities. For each disability diagnosed the examiner must indicate whether it is at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's period of service to specifically include as due to the Veteran's claimed Southwest Asia environmental exposures and burn pits. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements and the competent lay buddy statements of record. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed 4. Finally, schedule the Veteran for a VA examination, with an examiner with sufficient expertise to determine the nature and etiology of his claimed bilateral shoulder conditions. The claims file must be reviewed, and such review should be noted in the opinion. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to the following: - Whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed bilateral shoulder conditions are etiologically related to the Veteran's period of service. Specifically, the examiner should address whether it is at least as likely as not that the Veteran's claimed disabilities are etiologically related to his repeated lifting of heavy equipment, gear, loading pallets, storage containers, etc. while on active-duty service. - Whether the Veteran's left shoulder disability clearly and unmistakably existed prior to active-duty service, and if so, whether it was at least as likely as not (a 50 percent probability or greater) aggravated beyond the course of its natural progression by the Veteran's active duty service; to include as due to his repeated lifting of heavy equipment, gear, loading pallets, storage containers, etc. while on active-duty service For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiners must discuss and consider the Veteran's competent lay statements and the competent lay buddy statements of record. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed Additionally, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, if no diagnosis is rendered for the Veteran's bilateral hips and bilateral knees, the examiner should provide etiological opinions as to whether or not the Veteran's pain causes functional limitation, and if so, if the pain is at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's period of service. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.