Citation Nr: 1303248	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  12-05 998	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a left knee condition.

3.  Entitlement to service connection for a right knee condition, to include as secondary to a left knee condition.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1988, to December 1988, and December 1990, to March 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the Veteran's claims for service connection.  

In July 2012, a hearing was held before the undersigned Veterans Law Judge making this decision.  See 38 U.S.C.A. § 7107(c) (West 2002).  A transcript of these proceedings has been associated with the claims file.

A review of the Virtual VA paperless claims processing system revealed no further evidence pertinent to the present appeal.

The issues of a left knee condition and a right knee condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Tinnitus is related to acoustic trauma in active service.




CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

With respect to the claim for entitlement to service connection for tinnitus, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). 

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  	

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  

In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection may 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.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d).  

A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder.  38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-95.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

The Veteran contends that his tinnitus is related to military service, specifically due to exposure to acoustic trauma while engaging in basic rifle marksmanship and hand grenade training.  Particularly, in a June 2007 statement, the Veteran stated that he was assigned to an artillery unit and exposed to regular artillery cannon fire during weekend drills and mobilizations.  He also stated that he did not feel the military properly trained him in the use of hearing protection.  At his 2012 Board hearing, the Veteran stated that he was also exposed to noise from loud engines used to transport the medical equipment that he handled and that he was only provided hearing protection for hand grenade training.   A review of the Veteran's service personnel records shows that he completed training for both the M16 and hand grenades in October 1988.   Further, the unit listing on a December 1990 Health Questionnaire for Dental Treatment listed the Veteran's unit as falling under the 35th Air Defense Artillery.  The Veteran is competent to testify regarding his exposure to weapons fire in training.  Also, the Veteran's service personnel records and service treatment records tend to corroborate the types of exposure detailed by the Veteran.  In this regard, the Board finds the Veteran's claimed exposure to acoustic trauma in the military to be credible.  See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza, 7 Vet. App. at 511.  

The Veteran has also claimed in his March 2009 Notice of Disagreement and 2012 Board hearing that his tinnitus began in service and has continued consistently to present.  Particularly, the Veteran stated that he began to notice ringing in his ears after firing weapons in the military.  He then stated that he began to experience the ringing all the time, even when he was not shooting, in his early twenties.  The Veteran described the ringing as a low toned sound.  He further stated that the ringing gets worse when exposed to loud noises.

The Veteran's physical induction examination, separation physical examination, and service treatment records (STRs) are negative for complaints, treatment, or a diagnosis of tinnitus. 

Private treatment records submitted by the Veteran show that he has been treated intermittently for complaints of ear infections and tinnitus since 2005.  No discussion of etiology was ever provided.

An October 2007 VA audiological examination was obtained.  The Veteran reported a history of bilateral tinnitus that was periodic, consisting of occasional ringing for a few seconds to a minute.  The Veteran indicated that he was exposed to acoustic trauma during service, including training without hearing protection.  The Veteran denied any other kinds of noise exposure.  Upon examination and review of the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's tinnitus was related to military noise exposure.  In support, the examiner provided that this opinion was based on her experience and the evidence reviewed.  No further explanation was provided.

The Veteran also submitted an examination report from a private audiologist in July 2007.  The private audiologist conducted audiometric testing and noted that the Veteran had mild frequency hearing loss on the left that was consistent and likely related to the noise exposure from right handed gunfire.  Additionally, the audiologist provided that some of the Veteran's tinnitus is likely related to such hearing loss.

The Board finds that the evidence of record supports service connection for tinnitus. First, there is a current disability because the Veteran has provided competent and credible evidence of ringing in his ears.  See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza, 7 Vet. App. at 511.  Second, there is in-service incurrence because the Veteran has provided competent and credible evidence of ringing in his ears during service.   Id.   Furthermore, the Veteran's description of training during the military as well as his service personnel records indicates in-service noise exposure, which tends to support his statements of ringing in his ears during service.  Third, the Veteran has provided competent and credible testimony that his tinnitus has continued since service discharge.  See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. at 511.  Additionally, the medical opinion offered by the private audiologist supports this relationship in finding it likely that tinnitus could be related to exposure to weapons fire.  Accordingly, the evidence of record supports a finding of service connection for tinnitus. 

As such, the Board has determined that the Veteran is competent and credible in his report that he was exposed to acoustic trauma in service, experienced bilateral constant tinnitus in service, and has experienced continuous symptoms of tinnitus since service.  Therefore, service connection for tinnitus is warranted. 


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim regarding the right and left knees.  Remand is required to obtain a VA examination in order to determine the etiology of the Veteran's bilateral knee condition.

Remand is required to provide the Veteran with a VA examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). 

Here, the Veteran has provided testimony at his July 2012 Board hearing that he experiences aching in his left knee, particularly the knee cap.  He also experiences pressure and strain on his right knee as a result of compensating for the left knee.  Whenever the Veteran engages in strenuous activity, he has to use an ACE bandage and Icy Hot.  The Veteran further alleges that these symptoms began during service, immediately after an injury in which he fell on the stairs while stationed in Germany in the early 1990s.  Because the Veteran's statements are in regard to the observable symptoms of his condition and do not require expert medical knowledge, such statements are found to be competent.  Further, there is nothing significant in the record that directly contradicts these statements, so they are also found to be credible.  As such, the Board finds that both a current disability and an in-service event have been identified.  Therefore, the issue turns upon the finding of a nexus between these two disabilities.  McLendon, 20 Vet. App. at 83-86.  The Veteran has provided private treatment records which show his complaints of pain, but no discussion of etiology.  Further, the Veteran has not been provided with a VA examination.  In this regard, a VA examination is necessary in order to make a determination regarding such a nexus.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. After any additional records are associated with the claims file, provide the Veteran with an appropriate in- person examination to determine the etiology and severity of the Veteran's bilateral knee disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  

The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee condition was related to military service, to include whether the left knee condition has resulted in an increase in severity of any right knee condition beyond natural progression.  The Veteran's lay statements regarding onset and continuity of symptoms of pain must also be taken into consideration.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 

3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).

5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs