TINNITUS

Summary

The veteran, who served from December 2012 to October 2014, appeals the denial of service connection for tinnitus and seeks a compensable evaluation for several hip and foot conditions. The Board granted service connection for tinnitus. The veteran's service treatment records (STRs) did not mention tinnitus, but a December 2022 VA examination confirmed the diagnosis. The veteran stated the tinnitus was caused by noise exposure during combat training, which the Board found to be a reasonable presumption given the nature of military service. While the VA examiner noted the veteran's duties as an airframe mechanic involved hazardous noise exposure and that the STRs were silent for tinnitus complaints, they ultimately opined it was less likely than not related to service. The Board found the VA examiner's opinion to be probative and well-reasoned, but also afforded significant weight to the veteran's credible lay statements, finding continuity of symptomatology. Resolving doubt in the veteran's favor, the Board found the tinnitus at least as likely as not had its onset during active duty and granted service connection. The remaining claims for right and left hip strain, limitation of flexion/extension, other impairment, and right foot plantar fasciitis were remanded due to a pre-decisional duty to assist error, as the veteran was not notified of her right to a pre-decisional hearing.

Rationale

Current disability confirmed by VA exam; In-service event (noise exposure) presumed reasonable; Veteran's lay statements found credible; Continuity of symptomatology established; Benefit of doubt resolved in veteran's favor

Full Decision Text

Citation Nr: A24086313
Decision Date: 12/27/24	Archive Date: 12/27/24

DOCKET NO. 230226-326037
DATE: December 27, 2024

ORDER

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to a compensable evaluation for service-connected right hip strain, limitation of flexion is remanded.

Entitlement to a compensable evaluation for service-connected left hip strain, limitation of flexion is remanded.

Entitlement to an initial evaluation in excess of 10 percent for service-connection for right hip strain, limitation of extension is remanded.

Entitlement to an evaluation in excess of 10 percent for service-connected left hip strain, limitation of extension is remanded.

Entitlement to a compensable evaluation for service-connected right hip strain, other impairment is remanded.

Entitlement to a compensable evaluation for service-connected left hip strain, other impairment is remanded.

Entitlement to an evaluation in excess of 10 percent for service-connected right foot plantar fasciitis is remanded.

FINDING OF FACT

The competent and credible evidence of record persuasively establishes a finding that the tinnitus is related to active-duty service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus have been 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 December 2012 to October 2014. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the February 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the tinnitus claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the remaining claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

Entitlement to service connection for tinnitus

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The Veteran alleges that tinnitus began during service, and has existed since that time.

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent a VA examination in December 2022 where the examiner confirmed a diagnosis of tinnitus. Accordingly, the first element of service connection is met.  

Second, the Board finds that there was an in-service event, injury or disease
 may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

The Veteran alleges that tinnitus began during service, and has existed since that time.

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent a VA examination in December 2022 where the examiner confirmed a diagnosis of tinnitus. Accordingly, the first element of service connection is met.  

Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service treatment records (STRs) are silent for any complaints of or treatment for tinnitus, or ringing in the ears; however, at the December 2022 VA examination, she asserted that the tinnitus was caused by noise exposure during combat training. The Board finds it reasonable to presume that all soldiers would have had some noise exposure during combat training. The Board finds the Veteran's statements competent as they are capable of lay observation. 38?U.S.C. §?1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the probative value of a witness statement may be affected by inconsistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met.

Third, the Board finds that the evidence of record does support a finding that the tinnitus is related to active service.  

The December 2022 VA examiner provided a negative nexus opinion. They conceded that her duties as an airframe mechanic had a high probability for hazardous noise exposure, and that she was exposed to weapons fire, aircraft and flight line noise, and loud yelling during her time in military service. The examiner explained that noise levels associated with weapons fire, aircraft and flight line noise, and loud yelling are known to exceed the safe levels of noise exposure, especially without the use of hearing protection, and can result in the provocation of tinnitus. However, they stressed that the Veteran maintained normal hearing sensitivity in both ears over the course of her military service, and that the STRs are silent for a complaint of tinnitus. Accordingly, they concluded that it is less likely than not that the Veteran's recurrent bilateral tinnitus is related to military noise exposure.

The Board affords the December 2022 medical opinion significant probative value as it was conducted by a medical professional with consideration of the Veteran's lay statements, and specific facts in this case, and was supported by well-reasoned rationale. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

The Board also affords the Veteran's own statements significant probative weight. The Board finds that the Veteran is competent to report the symptoms of her tinnitus, and that these lay statements that the ringing in the Veteran's ears are related to service, are credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board finds the Veteran has established continuity of symptomatology of tinnitus. Tinnitus is a chronic disease for purposes of 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). Resolving all reasonable doubt in his favor, the Board finds the probative, competent evidence demonstrates that the Veteran's current tinnitus at least as likely as not had its onset during active duty.

Accordingly, the criteria for the claim of entitlement to service connection for tinnitus have been met, and the appeal is granted.

REASONS FOR REMAND

1. Entitlement to a compensable evaluation for service-connected right hip strain, limitation of flexion is remanded.

2. Entitlement to a compensable evaluation for service-connected left hip strain, limitation of flexion is remanded.

3. Entitlement to an initial evaluation in excess of 
 See Fountain v. McDonald, 27 Vet. App. 258 (2015). Resolving all reasonable doubt in his favor, the Board finds the probative, competent evidence demonstrates that the Veteran's current tinnitus at least as likely as not had its onset during active duty.

Accordingly, the criteria for the claim of entitlement to service connection for tinnitus have been met, and the appeal is granted.

REASONS FOR REMAND

1. Entitlement to a compensable evaluation for service-connected right hip strain, limitation of flexion is remanded.

2. Entitlement to a compensable evaluation for service-connected left hip strain, limitation of flexion is remanded.

3. Entitlement to an initial evaluation in excess of 10 percent for service-connection for right hip strain, limitation of extension is remanded.

4. Entitlement to an evaluation in excess of 10 percent for service-connected left hip strain, limitation of extension is remanded.

5. Entitlement to a compensable evaluation for service-connected right hip strain, other impairment is remanded.

6. Entitlement to a compensable evaluation for service-connected left hip strain, other impairment is remanded.

7. Entitlement to an evaluation in excess of 10 percent for service-connected right foot plantar fasciitis is remanded.

The Board finds that remand is required in order to correct a pre-decisional duty to assist error prior to the February 2023 rating decision on appeal. Prior to that rating decision, the AOJ should have notified the Veteran of her right to a pre-decisional hearing. Specifically, under 38 C.F.R. § 3.103(d)(1), claimants are entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim. However, the Veteran did not receive notice prior to the February 2023 rating decision, and therefore, a remand is required to correct this error, with readjudication of the claims after provision of notice to determine if the duty to assist requires any additional development.

By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file.

The matters are REMANDED for the following action:

Send the Veteran and her representative notice of a right to a hearing pursuant to 38 C.F.R. 3.103(d)(1).

 

 

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rogos, John M.

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.