190313-11827
190313-11827
| Board of Vet. App. | May 28, 2021Background
- Veteran served Mar 1989–Nov 1995 and May 2008–May 2009 and claimed service connection for bilateral tinnitus and a back disability.
- Opted into AMA/RAMP; AOJ issued the February 2019 rating decision; Veteran requested a Board hearing and testified in Jan 2021.
- STRs document some in-service back complaints (1992; Feb 2009) but are silent for tinnitus; post-service VA records (2012, 2016, 2017) document tinnitus and later imaging showing L4–L5 pathology.
- Veteran gave detailed lay testimony about loud-noise exposure in Desert Storm (artillery, bunker explosions, repeated firearm use) and continuous ringing since service.
- Board found the Veteran competent and credible to report tinnitus onset and symptoms and granted service connection for bilateral tinnitus.
- Board remanded the back claim for a VA examination because the McLendon factors for an opinion were met and the AOJ failed to obtain a nexus opinion (pre-decisional duty-to-assist error).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral tinnitus | Veteran: onset during Desert Storm noise exposure; continuous symptoms since service | AOJ/VA: earlier decision did not grant SC; record lacks in-service tinnitus documentation | Granted — Board found lay testimony credible and continuous symptomatology sufficient to establish service connection |
| Service connection — back disability | Veteran: multiple in‑service injuries (blast, being thrown, dragged, rollover sim), continuous post‑service symptoms, surgery in 2018 | AOJ/VA: no adequate nexus opinion in record tying current disability to service | Remanded — Board ordered VA exam/opinion under McLendon; duty-to-assist error found |
| Scope of evidence on AMA hearing appeal | Veteran submitted evidence at hearing and sought consideration | VA: under 38 C.F.R. §20.302(a) Board limited review to evidence at opt‑in plus hearing and 90‑day window | Board excluded evidence submitted outside the permissible period for the tinnitus decision but will have RO consider additional evidence for the remanded back claim |
| Need for VA medical opinion (duty to assist) | Veteran: contends continuity and medical records suffice; argues nexus exists | VA: requires medical nexus opinion when evidence insufficient to decide claim | Held that VA must obtain an examination/opinion for the back claim because current disability, in‑service evidence, and an indicia of nexus were present (McLendon met) |
Key Cases Cited
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (lay evidence can establish certain medical matters and onset when nexus is evident)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits and competence of lay evidence)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (continuity of symptomatology for presumptive service connection)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (when VA must provide a medical examination/opinion)
- Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir.) (duty to assist/VA exam standards)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (reasonable doubt rule—resolve doubts in claimant's favor)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (presumptive service connection for chronic disease manifestation)
- Charles v. Principi, 16 Vet. App. 370 (Vet. App.) (tinnitus may be established by lay evidence)