Citation Nr: 1641822 Decision Date: 10/28/16 Archive Date: 11/08/16 DOCKET NO. 09-31 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for thyroid cancer, due to asbestosis. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a respiratory disability. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the right knee. 6. Entitlement to an evaluation in excess of 10 percent for posttraumatic arthritis of the bilateral thumbs. (The issue of entitlement to an initial compensable evaluation for left knee degenerative joint disease prior to November 24, 2010, and in excess of 10 percent as of February 1, 2011, is addressed in a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. With regard to the issues of entitlement to service connection for a right shoulder disability and a left shoulder disability, which were remanded by the Board in May 2013, a statement of the case was issued in January 2016. While a substantive appeal was submitted in January 2016, these issues have not been certified to the Board and appear to still be under consideration by the RO. Therefore, they will not be addressed by the Board at this time. The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for thyroid cancer secondary to asbestosis, entitlement to service connection for a respiratory disability, entitlement to service connection for diabetes mellitus, entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the right knee, and entitlement to an evaluation in excess of 10 percent for posttraumatic arthritis of the bilateral thumbs are addressed in the Remand section of the decision below. FINDING OF FACT The Veteran's current tinnitus cannot be reasonably disassociated from his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) inservice incurrence or aggravation of the disability; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that he developed tinnitus due to inservice noise exposure. Through statements and testimony, he has reported inservice exposure to loud noise while working on machines in the diesel engine room and boiler room of the ship he was stationed on. The Veteran's service treatment records are silent as to any complaints of or treatment for tinnitus. However, the Veteran complained of hearing loss in November 1973 and September 1974, and of headaches in November 1974, due to working in a high level noise area and the engine room. The Veteran's report of separation, Form DD 214, noted that his military occupational specialty in service was noted as DG-9760, which is electrical/mechanical equipment repairman. The Veteran's service personnel records indicate that he served onboard the USS PROTEUS. Accordingly, considering the places, types, and circumstances of his service, the Board finds the Veteran was exposed to noise exposure in service. 38 U.S.C.A. § 1154(a) (2015). The evidence of record includes a current diagnosis of tinnitus. The Veteran's statements are competent evidence to describe and self-diagnose tinnitus, as the manifestations of this disorder are readily observable to even a lay person. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that when a disorder may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). In support of his claim, the Veteran has provided statements and testimony indicating that he first began to experience tinnitus during his military service. The Veteran also contends that he developed tinnitus in service and has continued to have tinnitus since service. As noted, the Veteran's statements and testimony are competent evidence regarding observable symptoms or injury residuals. Moreover, tinnitus, or ringing in the ears, is a rare type of disability that may be established on the basis of lay evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Veteran's statements are competent evidence that his tinnitus began during service, and that he has continued to experience tinnitus since service to the present. An April 2013 VA examiner indicated that the Veteran reported a "whining noise or hum" in both ears, which would occur every day and could last for hours. The Veteran reported that he had this problem since he was in the Navy. However, the examiner found that it was "less likely than not" caused by or a result of military noise exposure, because a VA audiology report from September 2009 noted that the Veteran complained of ringing in the ears for the past six months, and December 2008 VA progress note indicated that the Veteran denied tinnitus. The examiner then cited to the IOM Noise and Military Service: Implications for Hearing Loss and Tinnitus (2005) study which allows that there is a possibility of a delay in onset of tinnitus due to noise exposure, but "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." However, the probative value of the VA's examiner's opinion is lessened by the examiner's decision to essentially ignore the Veteran's other competent lay statements of inservice incurrence and continuity of symptomatology. The Board has considered the April 2013 VA examiner's indication that the December 2008 VA treatment record indicated that the Veteran did not report having tinnitus and that the September 2009 VA treatment record noted that the Veteran complained of ringing in the ears for the past six months. However, the Veteran has indicated, and it is documented in the record, that his tinnitus was intermittent and not constant. The recurrent nature of tinnitus is enough to establish it as a chronic disability. Considering all the evidence of record, the Board finds that the evidence is at the very least in equipoise in showing that the Veteran's tinnitus is related to his active military service. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is granted. REMAND The Veteran seeks service connection for a respiratory disability, to include as due to exposure to asbestos and other toxic chemicals. The Veteran was provided a VA respiratory examination in November 2010. The examiner diagnosed asthma, and opined that it was "less likely than not" caused by or a result of asbestos exposure. The rationale provided by the examiner was that the Veteran had not been diagnosed with an asbestos-related pulmonary disease, and that although his computerized tomography scan of the thorax and chest x-ray showed abnormalities, no diagnosis of an asbestos-related disorder was made. However, the examiner did not comment on whether asthma was related to his military service. Also, the examiner did not comment on the Veteran having a history of bronchiectasis, which was noted in the medical history portion of the examination report. The Veteran's service treatment records note that he complained of a productive cough in July 1974, and upper respiratory infections were diagnosed in December 1974, with complaints of a heavy cough and pain in the chest. On remand, the Veteran should be afforded another examiner to determine the nature and etiology of any current respiratory disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As for the issue of whether new and material evidence has been received to reopen a claim for service connection for thyroid cancer secondary to asbestosis, the Board finds that this issue is inextricably intertwined with the issue of service connection for a respiratory disability, which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). A finding that service connection is warranted for a respiratory disability, including asbestosis, may impact the Veteran's claim, which is claimed as due to such disorder. As such, adjudication of the claim to reopen the issue of service connection for thyroid cancer would be premature, at this juncture. Regarding the Veteran's claim for service connection for diabetes mellitus, the Veteran has not been afforded a VA examination in conjunction with his claim. The Veteran contends that he developed diabetes from exposure to asbestos and chemicals while working on USS PROTEUS during service, including when the ship was in dry dock. Given that post-service VA treatment records note a diagnosis of diabetes mellitus, type II, the Board finds that the medical evidence currently of record is inadequate to decide the claim for service connection claim for diabetes mellitus and that a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). With regard to the claims of entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the right knee and entitlement to an evaluation in excess of 10 percent for posttraumatic arthritis of the bilateral thumbs, the record reflects that the Veteran was last examined with regard to these disabilities in April 2013. Subsequently, during his April 2016 Board hearing, the Veteran stated that his conditions have worsened since his last VA examination. While the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted, in light of the Veteran's apparent indication of a worsening of his condition, the Board finds that a contemporaneous VA examination is warranted to determine the current severity of the Veteran's right knee and bilateral thumb disabilities. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Also, the Veteran has indicated that he continued to receive VA treatment for his disabilities. The most recent VA treatment records are dated in February 2016. On remand, updated VA treatment records should be obtained. 38 C.F.R. § 3.159 (c)(2). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 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. Regardless of his response, the RO must obtain and associate with the claims file the Veteran's updated VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination to determine whether his diabetes mellitus is related to active service, to include being due to exposure to asbestos and other chemicals during service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed diabetes mellitus is related to the Veteran's military service or from exposure to asbestos and chemicals while working on USS PROTEUS during service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must be afforded a VA examination to determine whether he has a respiratory disability which is related to active service, to include being due to exposure to asbestos and other chemicals during service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed respiratory disability, to include asthma, is related to the Veteran's military service or from his exposure to asbestos and chemicals while working on USS PROTEUS during service. The examiner must also comment on the Veteran's service treatment records, which note that he complained of a productive cough in July 1974, and the diagnosed upper respiratory infections in December 1974, with complaints of a heavy cough and pain in the chest. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded an appropriate examination to determine the severity of his service-connected degenerative arthritis of the right knee. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must conduct full range of motion studies on clinical evaluation, in terms of degrees with a goniometer on the service-connected right knee. The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint in question and any undamaged paired joint. If there is clinical evidence of pain on motion in active motion, passive motion, and after a minimum of three repetitions on motion, the examiner must indicate the specific degree of motion at which such pain begins, for both the joints in question and any undamaged paired joint. If there is clinical evidence of pain on weight-bearing, and nonweight-bearing, the examiner must indicate the specific degree of motion at which such pain begins, for both the joints in question and any undamaged paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse. The examiner must also indicate whether there is any recurrent subluxation or lateral instability of the right Veteran's knee, and if so, whether it is slight, moderate, or severe. 5. The Veteran must be afforded an appropriate examination to determine the severity of his service-connected posttraumatic arthritis of the bilateral thumbs. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must comment on the severity of his thumbs and report all signs and symptoms necessary for rating the disability. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should provide measurements of the gap between the thumb pads and the fingers with the thumb attempting to oppose the fingers. The examiner must test the range of motion in active motion and passive motion for the joints in question. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran's complaints and medical history, the examiner must also specify whether and to what extent there is any additional loss of finger motion (stated in degrees or in terms of the size of any gap between the thumb pad and the fingers) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 6. The RO must notify the Veteran that it is his responsibility to report for all scheduled examinations, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable. 7. The RO must review the examination reports and ensure that all requested development has been completed in full. If a report is deficient in any manner, undertake corrective actions prior to any further adjudication of the claims. 8. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be adjudicated. If a benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs