Citation Nr: 22030516 Decision Date: 05/24/22 Archive Date: 05/24/22 DOCKET NO. 17-65 697 DATE: May 24, 2022 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 skin disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for bilateral leg numbness is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to January 1976 in the United States Navy. On his December 2017 VA Form 9 substantive appeal, the Veteran requested a videoconference hearing. A videoconference hearing was scheduled for July 2021, but the Veteran stated that he was medically unable to come to the Jackson VA RO and did not have the proper equipment to do a virtual hearing at home. The Veteran requested the hearing be set up at the Biloxi VAMC. A videoconference hearing was scheduled for July 2021 at the Biloxi VAMC, but the Veteran did not appear for the hearing. Since the date of the missed hearing neither the Veteran nor his representative has indicated that he still wishes to have a videoconference hearing before a Veterans Law Judge and the Veteran has not presented good cause for why he was unable to attend the rescheduled hearing. Under these circumstances, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to review the case based on the evidence of record without any prejudice to the Veteran. See C.F.R. § 20.704 (d), (e). Entitlement to Service Connection for Tinnitus The Veteran contends that he has tinnitus that is etiologically related to acoustic trauma serving on the flight deck of a Naval vessel. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The October 2016 VA examination shows the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. The October 2016 VA examination includes an opinion stating that the etiology of tinnitus cannot be determined due to speculation. Therefore, the Board affords this opinion little probative value. The evidence in favor of the claim includes competent lay statements from the Veteran indicating that he began experiencing ringing in the ears following exposure to military aircraft noise on the flight line. The Veteran's DD-214 reflects a military occupational specialty of jet engine technician, and therefore the Board will concede his claimed noise exposure. Furthermore, the Board finds the Veteran's reports of ringing in his ears to be credible. The Veteran's brother, also a US Navy Veteran, submitted a competent lay statement that the Veteran told him about the ringing in his ears while they were still in the Navy, lending further credibility to the Veteran's claim. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current tinnitus arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran's service treatment records (STRs) appear incomplete, as they only contain an enlistment examination and one page of records from 1974. Statements from the Veteran and his brother indicate that he sought treatment and was put on light duty for injuries, further indicating that STRs may remain outstanding. Attempts must be made to obtain the Veteran's complete STRs. Evidence indicates that there may be outstanding relevant VA treatment records. In a December 2017 statement, the Veteran reported that he was treated at a VA Medical Center in Biloxi. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral hearing loss as no VA examiner has provided an adequate hearing loss evaluation and opinion for tinnitus etiology. The October 2016 hearing loss and tinnitus DBQ notes that the Veteran's bilateral hearing loss could not be tested (CNT) due to the Veteran's reported hearing loss results being inconsistent with expected audiometric results. Accordingly, the October 2016 hearing loss and tinnitus DBQ is not probative evidence in favor or against the Veteran's claim for service connection for bilateral hearing loss. The Board will remand this claim for a new audiological examination to determine the nature and etiology of any bilateral hearing loss disability the Veteran may have 2. Entitlement to service connection for a skin rash is remanded. 3. Entitlement to service connection for bilateral leg numbness is remanded. 4. Entitlement to service connection for a back disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a skin disability, bilateral lower extremity numbness disability, and a back disability because no VA examiner has opined whether these claimed disabilities are etiologically related to active duty service. The Veteran has indicated that each of these claimed disabilities are current and related to active duty service. The Veteran is competent to report symptoms associated with each of these claimed disabilities, such as scarring, leg numbness, and back pain. The Veteran also cites VA treatment records that contain diagnoses which, as stated above, are outstanding. Finally, competent lay statements from the Veteran and his brother describe the alleged incidents during service that the Veteran is citing as the etiology for these claimed disabilities. Therefore, the Board finds that the Veteran should be afforded a VA examination with an opinion addressing these issues. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Take all appropriate action to obtain and associate with the record the Veteran's complete STRs. If all procedurally appropriate actions have been taken to locate and secure the Veteran's STRs, and it is determined that such records do not exist or that further efforts to obtain them would be futile, the RO must make a formal finding to that effect and notify the Veteran of the same. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence regarding his treatment for any of the three claimed conditions being remanded. To that end, the Veteran should also be invited to submit additional evidence in support of his claim, to include statements from friends and relatives. Based on his response, the RO must attempt to locate and associate with the claims file any outstanding VA medical records pertaining to the Veteran's treatment at any VA medical center after his discharge from service. Specifically, the RO must attempt to obtain any records from the VA medical center in Biloxi, Mississippi documenting any treatment the Veteran received there. Furthermore, regardless of how the Veteran responds, the AOJ must obtain and associate any heretofore unavailable treatment records from any VA medical center at which the Veteran sought treatment, pursuant to the provisions of 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination for his bilateral hearing loss. A copy of the claims file should be made available to and reviewed by the examiner. Any clinical testing deemed necessary should be scheduled. After review of the Veteran's claims file, to include his service treatment records, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss disability is related to his period of active duty service. If it is less likely than not that the Veteran's current hearing loss disability is related to his period of service, the examiner should discuss why this is the case, to include the clinical significance of any "normal" in-service hearing test results, as well as the lack of permanent pure tone threshold shifts during service. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinions expressed. The Veteran's lay contentions as to acoustic trauma must be considered in full. 3. Schedule the Veteran for a VA examination to evaluate the nature and likely etiology of the claimed skin disability. A copy of the claims file should be made available to and reviewed by the examiner. Any clinical testing deemed necessary should be scheduled. In determining whether the Veteran has a diagnosable skin disability, if a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. After considering whether the Veteran has a diagnosable skin disability, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed skin disability was incurred in or is otherwise attributable to service, including exposure to aircraft fumes? The examiner must specifically address the statement of the Veteran's brother that while they were both in the military the Veteran told him that his face had broken out after exposure to exhaust fumes, with scars still present to this day. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinions expressed. The Veteran's lay contentions as to acoustic trauma must be considered in full. 4. Schedule the Veteran for a VA examination to evaluate the nature and likely etiology of the claimed back disability as well as the claimed bilateral lower extremity numbness symptomatology. A copy of the claims file should be made available to and reviewed by the examiner. Any clinical testing deemed necessary should be scheduled. The examiner is first asked to determine whether there is a diagnosable disability or disabilities to account for the Veteran's reported back symptomatology and bilateral lower extremity weakness. If a distinct diagnosable condition or multiple such diagnosable conditions are appropriate, the examiner should also explain why this is so. The examiner is reminded that if a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. If a diagnosable condition or conditions are identified that accounts for the claimed back symptomatology or lower extremity numbness, the examiner must provide an opinion as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that any such diagnosed condition or conditions are etiologically related to the Veteran's military service, including the constant stooping, and bending under aircraft, hauling fuel hoses, and/or falling downstairs on a Naval ship? Furthermore, regardless of the outcome above, the examiner must also set forth a separate opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed disability that accounts for the Veteran's lower extremity numbness is caused or aggravated by the separately diagnosed back disability. If the opinion is the diagnosed back disability aggravated (that is, caused any increase in the severity) the diagnosed lower extremity neurological condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The Board notes the anatomical distinctions between the claimed conditions listed above and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion of the AOJ and/or the examining medical facility. 5. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.