Citation Nr: 1303091 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-36 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1977 to February 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2011, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. The issue of entitlement to service connection for a right knee disability has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The issues of entitlement to service connection for a left knee disability, a bilateral foot disability, and sleep apnea are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran experienced tinnitus in service and there is post-service continuity of symptomatology demonstrating a nexus between the current tinnitus and the in-service tinnitus. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is inapplicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating entitlement to service connection for tinnitus. Principles of Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran seeks service connection for tinnitus or ringing in his ears, which he asserts began after his exposure to loud noises in service. At the December 2011 hearing, the Veteran testified that in service, he was an infantryman and was exposed to a variety of loud noises, including artillery and bombs, loud trucks, and gun fire. He stated that when he complained of ringing in his ears in service, his ears were flushed out and he was provided with drops and told the problem would go away. He was given hearing protection to wear in the field, but was unable to hear orders if he wore it, so he usually did not. He reported that his tinnitus had persisted since service and he had been told it was a result of noise exposure. It was currently severe enough to interfere with his ability to communicate with others at times. The Veteran is competent to report tinnitus as well as a continuity of symptomatology. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. While the Veteran's service treatment records are unavailable, because the Veteran is competent to report on his symptoms, the lack of medical evidence in service is not detrimental to his claim. Further, the Veteran testified under oath that he began experiencing tinnitus in service after exposure to loud noises including artillery shells and hand grenades. He testified that the problem had persisted since service and there is nothing to explicitly contradict the Veteran's reports of tinnitus ever since service and his reports are not inconsistent with the evidence of record. Thus, the Board finds that the Veteran's reports of a continuity of symptomatology since service are credible in this case. As there is evidence of tinnitus in service, current tinnitus, and of a continuity of symptomatology since service, and resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran has testified that he received treatment for a left knee disability at the VA Medical Center in Temple, Texas, and that he was given an examination with regard to his knee claim in 2009 or 2010. Neither the Temple Texas treatment records nor any record of an examination of the left knee are contained in the claims file. The Veteran also seeks service connection for a bilateral foot disability. While the VA treatment records contained in the claims file mention provision of special shoes or shoe inserts for the Veteran's feet, there are no treatment records per se, and there is no formal diagnosis of a foot disability. At the December 2011 hearing, the Veteran testified that he had surgery at VA on the left foot in 2009 and right foot in 2010. Although VA treatment records are constructively considered to be "of record" and should be considered in any adjudication of the claim, no VA treatment records after August 2009 are included in the file. In addition, with respect to both the left knee and the foot disability claims, the Veteran testified at the December 2011 hearing that he was given a profile for no running or prolonged standing on multiple occasions in service. Inasmuch as the Veteran's service treatment records are presumed to be unavailable, VA has a heightened duty to assist the Veteran in obtaining alternative evidence which may support his claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this instance, records of any profile assigned in service for the knee disability or foot problems would potentially be contained in the Veteran's service personnel records, such records are not currently of record. Although there are a few scattered references to sleep apnea in the available VA treatment records, many of the pertinent medical records appear to be missing. The Virtual VA record system does not contain any CAPRI or other VA treatment notes involving any of the claims on appeal here. Also, the Board notes that the Veteran has not been afforded a VA examination with respect to any of his current claims. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this instance, the testimony provided by the Veteran at hearing regarding his symptoms in service and his current diagnoses is sufficient to satisfy the low threshold standard of McLendon. VA examinations should be obtained on remand. Finally, the Veteran testified at the December 2011 hearing that he is in receipt of Social Security Disability benefits as a result of his bilateral foot disability. The United States Court of Appeals for Veterans Claims (Court) has held that where there has been a determination with regard to Social Security benefits, the records concerning that decision must be obtained. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) (VA is required only to obtain Social Security records when they may be relevant to the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security Disability benefits as well as the medical records relied upon concerning that claim. 2. Obtain the Veteran's complete service personnel records for inclusion in the claims file. Such records should include any notations of the Veteran being placed on profile due to problems with his knees or feet in service. 3. Obtain all records of relevant VA treatment, including those related to surgery on the Veteran's feet in 2009 and 2010, records from the Temple Texas VA Medical Center, and any record of any examination conducted of the Veteran's left knee disability. 4. Efforts to obtain the above referenced records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. If, any requested records cannot be obtained, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 5. After the development set forth above is completed, provide the Veteran with VA examinations to determine the nature and etiology of any left knee disability and/or bilateral foot disability. The examiner should offer an opinion as to whether any current disability of the feet or left knee was at least as likely as not the result of an injury or disease in active service. In rendering this opinion, the examiner should review any service personnel records obtained which reference profiles given to the Veteran for knee or foot disabilities. The examiner should also consider and comment on the lay history as provided by the Veteran and is instructed that the Veteran is competent to report symptoms and injury, even if not documented in treatment records. The examiner should also indicate whether the surgeries performed on the Veteran's feet are in any way related to his military service. The claims file, including relevant records in Virtual VA should be reviewed by the examiner. The examiner should provide an explanation or reasons for all opinions. 6. Afford the Veteran a VA examination to determine whether the Veteran has current sleep apnea (shown at any time since his claim) that began in service or is otherwise the result of a disease or injury in service. The examiner should offer an opinion as to whether this disability was incurred in or aggravated by his military service. In rendering an opinion, the examiner should obtain a careful history from the Veteran regarding his symptoms and is advised that the Veteran is considered competent to provide evidence on symptoms he has experienced, regardless of whether the symptoms are documented in treatment records. The examiner should review the claims file, including relevant records in Virtual VA. The examiner should provide an explanation or reasons for all opinions. 7. If any decision remains adverse to the Veteran, then issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs