Citation Nr: 1304378 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-01 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for peripheral neuropathy in the lower extremities. REPRESENTATION Appellant (Veteran) represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in December 2012 to present testimony on the issues on appeal. The transcript was associated with the Veteran's virtual VA folder. The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been added to the claims file by the RO since the statement of the case (SOC) dated in September 2009. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). In the decision below, the Board will grant service connection for tinnitus. The service connection claims for bilateral hearing loss, a right knee disorder, and peripheral neuropathy of the lower extremities 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 The Veteran experienced ringing in his ears during active duty and ever since. CONCLUSION OF LAW Tinnitus was incurred during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as service connection will be granted for tinnitus, there is no reason to further discuss the impact of the VCAA on this issue. Service Connection The Veteran claims service connection for tinnitus. He contends that he incurred the disorder due to acoustic trauma while serving in the U.S. Army as an aircraft mechanic, and while serving during a time of war in Vietnam in the late 1960s. The RO denied the Veteran's claim in the August 2008 rating decision on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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.); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layman is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layman is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Once competency is established, as a fact finder, the Board is also obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). In this matter, the evidence demonstrates that the Veteran experienced acoustic trauma during service, experienced tinnitus during service, has experienced a continuity of symptomatology of tinnitus since service, and currently has tinnitus. The evidence demonstrating current tinnitus is found in the Veteran's lay statements of record, which attest to experiencing tinnitus. The Board finds the Veteran competent to offer such evidence because tinnitus - ringing in the ears - is an observable symptom about which he can testify. See Layno, supra. Tinnitus is the type of disorder that is diagnosed by its unique and readily identifiable features, and is associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is not a determination "medical in nature" and is capable of lay observation). The Board particularly notes the Veteran's assertions during the Board hearing that he experiences tinnitus on a monthly basis. The evidence demonstrating in-service acoustic trauma is found in the Veteran's DD Form 214, in his lay statements during his testimony before the Board, and in written statements of record submitted in support of his claim. The Veteran contends that he experienced acoustic trauma and ringing in his ears as the result of exposure to weapons fire during training, his documented duties as an aircraft mechanic, exposure to weapons fire in Vietnam, and exposure to explosions from enemy attacks while serving in Vietnam. Again, the Veteran is competent to attest to loud noises and ringing in his ears, both of which are observable, so the Board finds his contentions of probative value. Moreover, service treatment records document that the Veteran served with the U.S. Army in Vietnam during a time of war. Thus, his statements are consistent with the circumstances of his service. The Board must now determine whether the record supports the Veteran's contention that his in-service acoustic trauma and tinnitus symptoms relate to his current tinnitus. The Board finds the evidence of record to be in favor of the assertion that the in-service acoustic trauma and tinnitus symptoms relate to the current tinnitus. The Veteran has credibly testified to having experienced a continuity of symptomatology of tinnitus since service. 38 C.F.R. § 3.303(b). This finding is based primarily on the Veteran's Board hearing testimony, during which he indicated that he has experienced tinnitus since active duty, albeit on an occasional basis. Indeed, he indicated that he experienced ringing in his ears in service, and that following service, his symptoms "came on gradually" and continue to manifest on at least a monthly basis. Again, his statements are of probative value because the crucial symptom of tinnitus - ringing in the ears - is an observable symptom. Moreover, the Board finds the Veteran's testimony to be credible regarding his in-service exposure to acoustic trauma, and the symptoms he began experiencing following that noise exposure. In assessing this matter, the Board notes that the Veteran underwent VA audiology examination in July 2008. In the report of record, the examiner stated that the Veteran did not indicate that he had tinnitus. The RO relied on this report to deny the claim, stating that the record lacked evidence of a current tinnitus disorder. It is indisputable that service connection cannot be granted in the absence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has therefore considered this report, and has assessed whether to rely on it and thereby deny the Veteran's claim to tinnitus for lack of evidence of a current disorder. However, this would not be an appropriate course of action given the Veteran's claim of experiencing tinnitus on an occasional basis. Though, by his own testimony, his disorder is not constant, the Board will nevertheless accept his occasional symptoms as evidence of a chronic disorder. The requirement that a current disability be present is satisfied if the evidence indicates a disability at the time of claim or during the appeal period. McCain v. Nicholson, 21 Vet. App. 319 (2007). Resolving reasonable doubt in the Veteran's favor, the Board finds that the current tinnitus is related to the acoustic trauma in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND The Board finds remand necessary so that additional development and medical inquiry may be conducted into the Veteran's claims of service connection for hearing loss, a right knee disorder, and peripheral neuropathy. With regard to the service connection claim for a bilateral hearing loss disability, the Board finds remand necessary for additional medical inquiry. The Veteran underwent VA audiometric examination in July 2008 that resulted in a written opinion from the examiner regarding the Veteran's claim. A new examination and opinion are necessary because the basis of the July 2008 opinion is insufficient. In short, the examiner based his opinion - that current hearing loss was unrelated to service - on the lack of evidence indicating a hearing loss disability during service. See 38 C.F.R. § 3.385. As the examiner noted, the Veteran's service treatment records (STRs) are negative for complaints, diagnoses, or treatment of hearing loss, and the separation audiometric test indicated normal hearing sensitivity with auditory thresholds below 20 decibels. See Hensley v. Brown, 5 Vet.App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). As noted in Hensley, however, the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley, 5 Vet. App. at 159. A VA examiner must base an opinion on not only what was evident during service, but also on what has happened since service. Additionally, during his hearing before the undersigned, the Veteran indicated that the was going to undergo private audio testing the following week (in December 2012). He also indicated that he would be asking his private audiologist for an opinion as to the etiology of his hearing loss. The Board held the record open for 30 days so that the Veteran could submit such evidence; however, no evidence was received. An attempt must be made to obtain any outstanding records. With regard to the Veteran's claim to service connection for a right knee disability, the Board finds remand warranted for medical inquiry. During his Board hearing, the Veteran described injuring his right knee while jumping from a military aircraft. Moreover, he has described experiencing a continuity of symptomatology of a right knee disability since discharge from service. The Board found his testimony credible. A VA examination is therefore necessary to determine whether a right knee disability began in, or was otherwise caused by, military service. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Board notes that private medical evidence of record dated between 2003 and 2007 note treatment for a left knee disorder, but not for a right knee disorder. With regard to the Veteran's claim to service connection for peripheral neuropathy, the Board likewise finds remand warranted for medical inquiry. The Veteran indicates that he may have incurred peripheral neuropathy during service as the result of presumed exposure to herbicides while serving in Vietnam. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The evidence indicates, however, that presumptive service connection for peripheral neuropathy is unwarranted here. That is because the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. By the Veteran's own admission during his hearing testimony, his peripheral neuropathy symptoms began manifesting approximately 15 years following discharge from service. Nevertheless, given the Veteran's complaints, the Board finds a medical opinion regarding the issue of direct service connection warranted here. See McLendon, supra. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In addressing the claim for service connection for peripheral neuropathy, the Board notes that the Veteran's January 1966 induction report of medical examination found no neurological problems, that the Veteran's STRs are negative for neurological problems, and the Veteran's September 1968 separation reports of medical examination and history are negative for neurological problems in the lower extremities. However, the Veteran's January 1966 induction report of medical history notes a pre-service "nerve" injury to the feet. And the Veteran noted "foot trouble" in an October 1966 report of medical history. This evidence should be considered in an examination determining the etiology of any peripheral neuropathy disorder. Additional document development may be warranted in this matter as well. During the Board hearing, the Veteran indicated that he underwent private medical treatment in the 1980s for the disorders on appeal. Though the record contains private medical evidence dated between 2003 and 2008, there is no private medical evidence from the 1980s. Further, the record does not evidence an attempt to retrieve any such records. Thus, VA should attempt to retrieve any such records on remand. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following: 1. Attempt to obtain and associate with the claims folder any outstanding private treatment records, particularly any records reflecting the private treatment the Veteran claims to have undergone in the 1980s and 1990s, as well as private audiological testing and/or treatment in December 2012. If no such records exist, the claims file should be documented accordingly. 2. Schedule the Veteran for a VA audiology examination. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: is it at least as likely as not likely (50 percent or more probability) that the Veteran's current bilateral hearing loss disorder is related to any in-service disease, event, or injury. In answering this question, please consider the evidence of record documenting that the Veteran was exposed to acoustic trauma during his military service in Vietnam in the late 1960s. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. Schedule the Veteran for an appropriate VA examination to determine whether the Veteran has a current right knee disorder and, if so, the nature and etiology of the disorder. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. If the examiner finds evidence of a current right knee disorder, the examiner is asked to provide an opinion as to the following: is it at least as likely as not likely (50 percent or more probability) that the currently diagnosed right knee disorder is related to any in-service disease, event, or injury? Please refer to the Veteran's competent and credible lay statements claiming in-service right knee injury after falling from an aircraft, and his assertion that he began experiencing a continuity of symptomatology (pain and locking) soon after service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 4. Schedule the Veteran for an appropriate VA examination to determine whether he has a current peripheral neuropathy disorder in the lower extremities. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. If the examiner finds evidence of current lower extremity peripheral neuropathy, the examiner is asked to provide opinions as to the following: is it at least as likely as not likely (50 percent or more probability) that the currently diagnosed lower extremity peripheral neuropathy is related to any in-service disease, event, or injury? Please refer to the fact that the Veteran served in Vietnam and was presumably exposed to herbicides while there. Please also note the Veteran's complaints in January 1966 of pre-service "nerve" injuries on his feet, and discuss the relevance to his complaints. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 5. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 6. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs