Citation Nr: 1307320 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-35 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for Meniere's disease. 2. Entitlement to service connection for a urinary disability, claimed as secondary to Meniere's disease. 3. Entitlement to service connection for a colon disability, claimed as secondary to Meniere's disease. 4. Entitlement to service connection for a spinal disability, claimed as secondary to Meniere's disease. 5. Entitlement to service connection for partial paralysis, claimed as secondary to Meniere's disease. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his spouse and his brother ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to July 1961. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied service connection for tinnitus. It is also on appeal from a September 2009 rating decision that denied service connection for Meniere's disease, and a March 2010 rating decision that denied the remaining claims on appeal. The claims were previously before the Board in March 2012, at which time they were remanded for additional development. With respect to the issue of entitlement to service connection for tinnitus, an addendum VA opinion was obtained in April 2012. As such, the Board finds that there has been substantial compliance with the mandates of the March 2012 remand with respect to tinnitus and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issues of entitlement to service connection for Meniere's disease, a urinary disability, a colon disability, a spinal disability, and partial paralysis 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. The Veteran is competent to report having experienced tinnitus since service. 2. There is competent clinical evidence of record that the Veteran's tinnitus is causally related to service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury to determine whether to grant service connection. The Board observes that this Federal Circuit decision is non-precedential. However, see Bethea v. Derwinski, 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and tinnitus, as an organic disease of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Here, the Veteran contends that he has tinnitus as a result of active service; specifically, he claims that he began experiencing tinnitus as a result of in-service noise exposure, to include being in close proximity to tank artillery. The first element of service connection is medical evidence of a current disability. The evidence of record includes several diagnoses of tinnitus. As such, this element is satisfied. The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was an armor crewman, and that he completed expert rifle training. In addition, in a June 2011 rating decision, the Veteran was granted entitlement to service connection for bilateral hearing loss after the RO conceded that he was exposed to hazardous military noise. Based on the forgoing, exposure to acoustic trauma in service is conceded as consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury. Although the Veteran's treatment records are negative for any complaints or diagnoses of tinnitus, the Veteran and his spouse have indicated that he suffered from a ringing in his ears since his period of active duty service. His July 1961 Report of Medical Examination at separation indicated that his ears were within normal limits, and the Veteran denied any ear trouble on his corresponding Report of Medical History. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has experienced tinnitus since service. In a March 2009 VA audiological examination report, the examiner diagnosed the Veteran as having bilateral tinnitus, but opined that the tinnitus was less likely as not due to in-service noise exposure on the basis that a July 1985 private physician's note indicated that tinnitus had its onset in fall of 1984. During an October 2011 hearing before the undersigned Veterans Law Judge, the Veteran submitted medical opinions from his longtime private treating physician. In these opinions, dated in September 2011 and October 2011, the private physician stated that he began treating the Veteran in the 1960s for symptoms, including ringing in the ears, that were related to Meniere's disease. Pursuant to the Board's March 2012 remand instructions, an addendum VA opinion was obtained in April 2012. The examiner reiterated that there was no mention of tinnitus in any military or civilian reports until 1984, and explained that as the interval between noise exposure and delayed onset tinnitus lengthened, the probability that the reported tinnitus was precipitated by factors other than the initial noise exposure increased. The examiner concluded that the Veteran's first report of tinnitus in 1984 was well beyond the reasonable time frame for delayed onset tinnitus caused by in-service noise exposure in the 1960s. However, as discussed above, in-service acoustic trauma has been conceded in this case, and the Board has also found that the Veteran is competent to report that he has experienced tinnitus since service. Moreover, pertinent to tinnitus, the Board notes that "an associated hearing loss is usually present" with tinnitus. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Additionally, "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. As noted above, the Veteran is already service connected for bilateral hearing loss due to in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, 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). As such, the Board will grant service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted. (CONTINUED ON NEXT PAGE) REMAND The Veteran also seeks entitlement to service connection for Meniere's disease. The Veteran was afforded a VA examination with respect to this issue in May 2011, but, in its March 2012 remand, the Board found that the May 2011 opinion was inadequate due to the Veteran's subsequent submission of medical opinions from his longtime private treating physician. In these opinions, dated in September 2011 and October 2011, the private physician stated that he began treating the Veteran in the 1960s for symptoms that were related to Meniere's disease. The examiner additionally opined that the Veteran's Meniere's disease was related to a blast injury the Veteran sustained while in service. Specifically, the Board's March 2012 remand instructions directed the VA examiner to review the claims file, including all post service treatment records, in order to fully address whether it was at least as likely as not that the Veteran's Meniere's disease was incurred during active duty due to or as a result of the blast injury. The examiner was requested to provide a rationale for any opinion expressed, to include an opinion as to the significance, if any, of the September 2011 and October 2011 private medical opinions, which related that the Veteran had symptoms of Meniere's disease in the 1960s, and that the Veteran's Meniere's disease was related to the in-service blast injury. Pursuant to the Board's remand instructions, an addendum opinion was obtained in April 2012. The examiner concluded that the Veteran's Meniere's disease was not due to military noise exposure. Specifically, the examiner explained that: there are several reports that indicate that the veteran did not experience dizziness or hearing loss until 1974. He didn't complain of constant tinnitus or vertigo until 1985. At that point [his private physician] stated in his report that the veteran had a 5-6 year history of Menier's [sic] Symptoms. He was in an accident in 1987 in which he fell from a tree and landed on his head, with resultant vertigo. However, the examiner did not address, let alone acknowledge, the September 2011 and October 2011 private medical opinions which related that the Veteran had been treated for symptoms of Meniere's disease in the 1960s. To the contrary, the VA examiner's opinion is predicated upon the premise that Meniere's symptomatology was not experienced by the Veteran until 1974. Because the VA examiner did not address the private medical opinions relating that Meniere's symptoms were first treated in the 1960s in rendering an etiological opinion, the Board finds that there has not been compliance with its March 2012 remand. Where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Veteran's secondary service connection claims are inextricably intertwined with the claim for service connection for Meniere's disease being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who provided the May 2011 VA medical opinion and the April 2012 addendum opinion (or a suitable substitute if this individual is unavailable) for another addendum opinion. The examiner is requested to review the claims file, including all post service treatment records as well as the September 2011 and October 2011 private medical opinions, in order to fully address: (1) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's Meniere's disease was incurred during active duty due to or as a result of the blast injury. The examiner is requested to provide a rationale for any opinion expressed, which should include an opinion as to the significance of the September 2011 and October 2011 private medical opinions (which relate that the Veteran was treated for symptoms of Meniere's disease in the 1960s, and that the Veteran's Meniere's disease was related to the in-service blast injury), along with the corresponding medical records dated from 1969 to 1976. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. 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). 3. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs