Citation Nr: 1303469	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  10-08 184	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for a spot on the lungs, including as due to exposure to asbestos.

2.  Entitlement to service connection for skin rash, including as due to exposure to herbicides.

3.  Entitlement to service connection for nose bleeds, including as due to exposure to herbicides.

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to service connection for vertigo.

6.  Entitlement to an increased initial evaluation for bilateral hearing loss, currently evaluated as noncompensable.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

The Veteran had active service from June 1966 to September 1969. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The appeal initially included a claim for service connection for posttraumatic stress disorder (PTSD).  However, during the pendency of the appeal, the RO granted the claim for service connection for PTSD in a December 2009 rating decision, and the Veteran was advised at that time it was considered a complete grant of the benefits sought.  As such, the issue is not before the Board.  38 U.S.C.A. § 7105(a); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (pursuant to 38 U.S.C.A. § 7105 , a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA).

The issues of entitlement to an increased evaluation for bilateral hearing loss and entitlement to service connection for vertigo are being remanded and 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.


FINDINGS OF FACT

1.  On May 18, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the issues of entitlement to service connection for a spot on the lungs, skin rash, and nose bleeds was requested.

2.  The evidence of record demonstrates that tinnitus likely manifested during the Veteran's active service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal have been met and the issues of entitlement to service connection for a spot on the lungs, skin rash, and nose bleeds are dismissed.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

In the present case, the appellant, through his authorized representative, has withdrawn the issues of entitlement to service connection for a spot on the lungs, skin rash, and nose bleeds, and hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed.


Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

In the present case, the RO sent notification letters to the Veteran dated in March 2007.  The record also includes his service treatment records, VA outpatient treatment records, private treatment records, the report of a VA examination, and lay statements.  In addition, the Veteran presented testimony at a May 2012 Board hearing before the undersigned Veterans Law Judge, and a transcript of that proceeding is of record.

The Board has considered whether further development and notice under the VCAA or other law should be undertaken.  Given the results favorable disposition of the claim in the decision below, further development would not result in a more favorable result for the Veteran or be of assistance to this inquiry.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Law and Analysis

The Veteran seeks service connection for tinnitus.  Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance, and the appeal will be granted.

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  That an injury was incurred in service alone is not enough.  Instead, there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). 

Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d). 

Under § 3.303(b), an alternative method of establishing the second and/or third Shedden elements is through a demonstration of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495-96 (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.  The United States Court of Appeals for Veterans Claims (Court) held that as long as the condition is noted at the time a Veteran was in service such noting need not be reflected in any written documentation, either contemporaneous to service or otherwise.  Id.  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id.   

In this case, the Veteran was afforded a VA examination in October 2007, and the examiner diagnosed him with bilateral, constant, severe tinnitus.  The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. 

The Veteran's service treatment records do not reflect any complaints, treatment or diagnoses of tinnitus.  In fact, the September 1969 examination completed in connection with the Veteran's release from active duty described the ears as normal and noted no defects or diagnoses other than some marks and scars that were not considered disabling.  

The Veteran, however, has presented testimony and statements alleging exposure to noise from serving as a mechanic and also reported the presence of ringing of the years during his service in his October 2008 notice of disagreement.  The Veteran is competent to describe the noises he heard and the symptoms he has experienced.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Furthermore, the Board finds the Veteran's testimony to be credible, as his description of symptoms has been consistent throughout the record, and his Form DD 214 corroborates his service in the Navy with a military occupational specialty of construction mechanic and motorized vehicle mechanic.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).

The final element is competent evidence of a nexus between the tinnitus and the noise exposure during service.  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a).  However, as noted above, in certain cases, competent lay evidence may satisfy any of the required elements.  "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2). 

In the present case, the Board finds that the evidence is at an approximate balance for a finding of continuity of symptomatology.  The Veteran was afforded a VA examination in October 2007, and although the Veteran described noise exposure and reported bilateral, constant, severe subjective tinnitus for 40 years, the examiner concluded that it was not likely the tinnitus had its origins in service as there was no documentation of tinnitus in the service treatment records.  Although there is a negative nexus opinion, the Board notes that the examiner did not consider the Veteran's lay report of noise during service and lay complaints of tinnitus when rendering this opinion and instead based the opinion solely on the absence of corroborating service treatment records.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion); Buchanan v. Nicholson, 451 F.3d 1331, 1336   (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible).  

However, the Veteran provided a history of constant, severe tinnitus for over 40 years.  The Board finds the Veteran's lay report of tinnitus to be competent and credible.  As noted above, the Veteran is competent to describe the symptoms, such as ringing of the ears, that he has experienced.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Additionally, his report as to the onset of the condition has been consistent.  Specifically, in his October 2008 notice of disagreement, the Veteran reported that the ringing existed all during his tours in service and continued since that time.  During the October 2007 VA examination, the Veteran also described the presence of ringing in the ears for over 40 years.  At the May 2012 Board hearing the Veteran further testified that the tinnitus began 40 years prior and explained that he first really noticed it shortly after being discharged from service.  As there are no conflicting statements in the record or any other reason to doubt the Veteran's reported history, the Board finds this description of ringing in the ears for over 40 years to be credible.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  Given the Veteran's competent and credible reported history of continuity of symptomatology since service, the Board finds that this is a situation where the benefit of the doubt rule applies.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, giving the Veteran the benefit of the doubt, service connection for tinnitus is granted.


ORDER

The issues of entitlement to service connection for a spot on the lungs, skin rash, and nosebleeds are dismissed.

Service connection for tinnitus is granted.  


REMAND

A preliminary review of the record discloses that further development is necessary.  Specifically, the duty to assist has not been satisfied.

As an initial matter, it appears there may be private medical records that have not yet been associated with the claims file.  The Veteran testified that he was treated for hearing loss by a private primary care physician, Dr. J.W (initials used to protect privacy).  In his notice of disagreement, the Veteran indicated that Dr. J.W. tested him for Meniere's disease, but noted that he did not know the results.  Thus, the records from Dr. J.W. appear relevant and should be obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 

The record also reflects the Veteran receives treatment at VA outpatient treatment centers.  For example, the Veteran submitted an April 2007 chest x-ray performed at the Phoenix VA Medical Center.  However, complete treatment records from this facility have not been associated with the claims file.  Accordingly, on remand, any outstanding VA outpatient treatment records should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1), (2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims file, are in the constructive possession of the Board and must be considered).


Hearing loss

The Veteran was last afforded a VA examination in October 2007 in connection with his claim for hearing loss.  During the May 2012 Board hearing, the Veteran testified that his condition had worsened.  Specifically, he explained that he read people's lips due to the severity of his hearing loss and stated that he had a lot more difficulty understanding them if they had their back turned to him.

VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  Accordingly, an updated VA examination is required to determine the current severity of the Veteran's service-connected hearing loss.  


Vertigo

During the May 2012 hearing, the Veteran indicated his belief that his vertigo was related to his hearing loss and/or tinnitus.  The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (en banc).  Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.

Here, the Veteran has provided lay reports of vertigo and is service-connected for hearing loss and tinnitus.  However, o opinion as to the relationship, if any, between the conditions has been obtained.  As such, without further clarification, the Board is without medical expertise to ascertain whether any current vertigo disability is related to service or his service-connected hearing loss and tinnitus.  Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). 

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should ask the Veteran to identify all sources of treatment that he has received for his vertigo and hearing loss and to provide any releases necessary for VA to secure records of such treatment or evaluation.  The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources.  

A specific request should be made for the complete medical records from the Dr. J.W., and the RO/AMC should obtain any outstanding treatment records from the Phoenix VA Medical Center and associate them with the claims file.

If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 

2.  After the records noted above have been associated with the claims file, schedule the Veteran for a VA examination to ascertain the nature and etiology of any currently diagnosed disability related to the claimed vertigo.  The examiner should review the claims file in conjunction with conducting the examination and should note that review in the report.  All indicated tests and studies should be completed. The examiner should opine as to the following:

(a) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed vertigo disability is related to an event, injury or disease in service.

(b) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed vertigo disability is caused or aggravated (permanently worsened) by the service-connected hearing loss and/or tinnitus. 

All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings.

3.  After the records noted above have been associated with the claims file, schedule the Veteran for a VA audiological examination to determine the current severity and manifestations of his service-connected bilateral hearing loss.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. T he examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. 

The examiner should comment on the severity of the Veteran's service-connected hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 

4.  After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 

5.  When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  This SSOC should set forth the provisions of 38 C.F.R. § 3.310.

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).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs