Citation Nr: 1307989 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-32 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a disorder of the left shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from July 1960 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). The claim for service connection for hearing loss has been raised by the record, but has not been readjudicated by the Agency of Original Jurisdiction (AOJ) since new evidence has been submitted. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The Veteran requested a Travel Board hearing. The requested hearing was conducted before the undersigned in July 2011 before the undersigned. The Veteran previously testified at a personal hearing before the RO in December 2010. The claims for service connection for a neck disorder and for a disorder of the left shoulder 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 Resolving reasonable doubt in the Veteran's favor, the Veteran's assertions that tinnitus has been chronic and continuous since service are credible and those assertions link current tinnitus to his service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants the claim for service connection for tinnitus. In view of the Board's decision to grant the Veteran's claim, a discussion of VA's duties to notify and assist in regards to that claim is not necessary, since further action to address the duty to notify or assist as to the claim for service connection would not be in the Veteran's interest. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Applicable Law Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish a right to compensation for a disability, a Veteran must show: "(1) the existence of a present disability; (2) the 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). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). The Veteran claims service connection for tinnitus. In his initial claim for service connection for tinnitus, the Veteran asserted that his tinnitus began in 1963, during his service. He asserts that he has had tinnitus since active service, with tinnitus worsening since 1970. VA outpatient treatment records dated in 2003 reflect that the Veteran sought evaluation for chronic tinnitus in 2002, but the etiology was not determined. It was noted that, initially, no audiogram was conducted; when audiogram was conducted, no hearing loss was found. At the time of March 2012 VA examination, the examiner noted that the Veteran was evaluated for tinnitus in 2005 and reported that he had been experiencing tinnitus for a couple of years at that time. The examiner stated that, at the 2010 audiologic examination, the Veteran stated that tinnitus had been present since 1970, worsening over time and becoming constant. The examiner opined that, since the Veteran had generally stated that tinnitus began after his service discharge, it was unlikely that it was due to his military service, but may have started during his reserve service. During his hearing before the Board, the Veteran asserted that tinnitus began during his service, prior to service discharge in 1963, but it seemed slight, and drifted from one ear to the other, so the Veteran did not perceive it as a problem, did not report it, and did not seek medical evaluation. The extent of the tinnitus increased over time, becoming more noticeable by the 1970s. The Veteran denied that he reported that tinnitus did not begin until the 1970s or later. The Veteran also noted that he had no reserve service, and he asserted that the unfavorable 20120 VA opinion was inaccurate and possibly the examiner confused what the Veteran said or mixed him up with another Veteran. The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments and status as a combat Veteran. The Veteran's assertion that he was a construction engineer is consistent with the official records. His assertion that he was a demolition specialist, including breaking up concrete, is not inconsistent with those records. In addition to the noise exposure related to demolition work, the Veteran testified that he worked around tanks and was on the rifle team. The Veteran has indicated, including in his personal hearing before the RO Hearing Officer, that his post-service occupation did not involve exposure to loud or hazardous noise. Tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding the Veteran competent to testify to symptomatology capable of lay observation); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examiner based his conclusion that the Veteran's tinnitus was not caused by military service on the fact that there was no documentation of tinnitus in service. The Veteran acknowledges that he did not report tinnitus when he noticed it in service, or for many years thereafter. However, ringing in the ears is a symptom that a lay person such as the Veteran is competent to report; and the Board has found no reason to doubt the Veteran's credibility with regard to his report that he experienced ringing in his ears beginning while in service, as such a contention is not contradicted anywhere in the record. Since the evidence is in equipoise, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Service connection for tinnitus is warranted. ORDER The appeal for service connection for tinnitus is granted. REMAND The Veteran has established that he sustained injuries in a motor vehicle accident in service. The Veteran has provided a photograph of the vehicle, which appears to have been totaled. The evidence establishes that diagnoses of a current neck disorder and a current left shoulder disorder have been assigned by medical providers. In a December 2010 letter submitted by a private physician, C.L.P., D.O., it was indicated that the neck and left should disabilities were related to the injury claimed to have been sustained in service. While there was no rationale for the opinion, the evidence is nonetheless sufficient for VA to be obligated to provide the Veteran with a VA examination to assess the nature and etiology of the Veteran's left shoulder and neck disabilities. 38 U.S.C.A. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's current VA clinical records from April 2010 to the present; do not associate duplicate records with the claims files. Obtain any and all reports of VA radiologic examination of the cervical spine (neck) and left shoulder not already of record. 2. Afford the Veteran an opportunity to submit or identify any alternative evidence which might assist him to substantiate the claim for service connection for a neck or left shoulder disorder not already of record, such as additional relevant private medical evidence which may have come into existence since his last submissions. 3. AFTER VA clinical records and all records identified by the Veteran have been assisted with the claims files (or notification to the Veteran that records cannot be located), the Veteran should be afforded VA examination of the neck (cervical spine) and left shoulder for the purpose of assessing the nature and etiology therefor. The claims folder and a copy of this Remand should be made available to the examiner for review in connection with the examination. The examiner must indicate that pertinent documents in the claims folders were reviewed, including service treatment records related to neck and back complaints and the photograph of the motor vehicle the Veteran was driving when it rolled over, as well as articles submitted by the Veteran about rollover accidents and that vehicle. The examiner should then answer the following questions: (i). What is diagnosis or diagnoses, if any, for the claimed disability of the Veteran's cervical spine disorder/neck? For any and all diagnoses of the cervical spine disorder/neck, is it at least as likely as not (50 percent, or greater, probability) that the Veteran incurred any such disability during service or as the result of any incident of service? Explain your opinion. (ii). What is diagnosis or diagnoses, if any, for the claimed disability of the Veteran's left shoulder? For any and all diagnoses of the left shoulder, is it at least as likely as not (50 percent, or greater, probability) that the Veteran incurred any such disability during service or as the result of any incident of service? Explain your opinion. In answering each question, the examiner must comment on the Veteran's lay statements as to onset of the symptoms attributed to the claimed disorder, diagnosed or undiagnosed. The examiner must explain the rationale for all opinions given. If any requested opinion cannot be provided without resort to pure speculation, the examiner should explain why the opinion cannot be provided and identify information that might assist to provide a basis for a non-speculative opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 4. The directions set forth in this Remand and the claims folder should be carefully reviewed to ensure that the foregoing requested development has been completed. Then, the claims on appeal should be readjudicated and the claimant should be notified of that adjudication. If any benefit requested on appeal is not granted to the claimant's satisfaction, the claimant and his representative should be furnished a supplemental statement of the case which addresses all of the evidence obtained. The claimant should be afforded an opportunity to respond. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs