Citation Nr: 1309488 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-19 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 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 left hip disorder. 4. Entitlement to service connection for a cervical spine disorder to include degenerative disc disease and degenerative joint disease. 5. Entitlement to service connection for a lumbar spine disorder to include degenerative disc disease and degenerative joint disease. 6. Entitlement to service connection for fibromyalgia. 7. Entitlement to service connection for a right shoulder disorder. 8. Entitlement to service connection for a bilateral hand disorder. 9. Entitlement to service connection for a right foot disorder. 10. Entitlement to an initial disability evaluation in excess of 30 percent for the Veteran's left (minor) shoulder disorder. 11. Entitlement to a compensable disability evaluation for the Veteran's sinusitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from February 1968 to August 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Oakland, California, Regional Office (RO) which established service connection for a left (minor) shoulder disorder; assigned a 20 percent evaluation for that disability; effectuated the award as of June 22, 2006; determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss; denied service connection for PTSD, tinnitus, hearing loss, a bilateral ankle disorder, a left hip disorder, a neck disorder, a low back disorder, fibromyalgia, a right shoulder disorder, a bilateral hand disorder, and a right foot disorder; and denied an increased evaluation for the Veteran's sinusitis. In March 2009, the RO granted service connection for PTSD with major depressive disorder; assigned a 100 percent schedular evaluation for that disability; effectuated the award as of June 22, 2006; and increased the initial evaluation for the Veteran's left shoulder disorder from 20 to 30 percent. In September 2011, the Board determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss and remanded both those issues and the remaining issues on appeal to the RO for additional action. In September 2012, the Appeals Management Center (AMC) granted service connection for left ankle sprain residuals; assigned a 10 percent evaluation for that disability; granted service connection for right ankle degenerative joint disease; assigned a noncompensable evaluation for that disability; and effectuated the awards as of June 22, 2006. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issues of service connection for a neck disability and a low back disability as entitlement to service connection for a cervical spine disorder to include degenerative disc disease and degenerative joint disease and a lumbar spine disorder to include degenerative disc disease and degenerative joint disease, respectively, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The issues of service connection for bilateral hearing loss, a left hip disorder, a cervical spine disorder, a lumbar spine disorder, fibromyalgia, a right shoulder disorder, a bilateral hand disorder, and a right foot disorder; an initial evaluation in excess of 30 percent for the Veteran's left (minor) shoulder disorder; and a compensable evaluation for his sinusitis are REMANDED to the RO via the AMC in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDING OF FACT Tinnitus was originated during active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(d), 3.326(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA' duties to notify and assist claimants in substantiating their claims 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 decision, the Board grants service connection for tinnitus. Therefore, no further discussion of VA's duties to notify and to assist as to that issue is necessary. II. Service Connection The Veteran contends that he sustained chronic tinnitus secondary to his military duties and associated significant aircraft noise exposure as an aerial refueling boom operator aboard military tanker aircraft. He advances that his chronic tinnitus has been attributed to his inservice aircraft noise exposure. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 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. 38 C.F.R. § 3.303(d) (2012). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records make no reference to chronic tinnitus or ringing of the ears. The Veteran's service personnel records note that the Veteran was an aircraft crewman and aerial refueling boom operator. He was attached to the Air Force's 903rd Air Refueling Squadron. A May 1994 written statement from R. McAfee, M.D., conveys that the Veteran complained of worsening bilateral tinnitus. An April 1997 private treatment record states that the Veteran was diagnosed with tinnitus. In his August 2001 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran stated that he had been exposed to significant aircraft noise during active service and initially manifested tinnitus in 1985. In his June 2006 claim, the Veteran advanced that he had initially manifested chronic tinnitus after he had completed approximately four years of active service. He clarified that he had not been asked whether he had tinnitus at his physical examination for service separation. A July 2006 VA audiological evaluation notes that the Veteran complained of chronic bilateral tinnitus. He reported that his tinnitus started during active service. The examiner commented that: Based on medical history, case history and audiometric configuration (normal hearing), it is not likely that tinnitus is caused by audiological pathology or noise exposure. It is more likely a combination of past and present medical pathologies. A February 2007 written statement from S. Lavoie of Beltone Hearing Aid Center relates that "it is very likely as not that [the Veteran] received his hearing loss and tinnitus to acoustic trauma caused by jet engines since he has not been exposed to acoustic trauma since his separation." An April 2007 VA audiological evaluation states that there were "no complaints of hearing loss or tinnitus found in service records" and "the [Veteran's] tinnitus is less likely than not due to excessive noise exposure in service." In his February 2008 notice of disagreement (NOD), the Veteran clarified that: This condition started approximately 2 years after I was on flying status (approximately 4 years on active military service) within the U. S. Air Force. Please note that I was exposed to acoustic trauma within the U. S. for more than 6 years. This condition has continued from my military service through the presence. At a November 2011 VA audiological examination for compensation purposes, the Veteran complained of tinnitus of "unknown" onset. The Veteran presented a history of constant exposure to aircraft noise during active service and recreational noise exposure while riding a motorcycle. The examiner concluded that: Less likely than not (less than 50% probability) a symptom associated with the Veteran's hearing loss. Rationale: Rationale same as with hearing loss. [The Veteran] did not have hearing loss on service and there are no reported or documented complaints of tinnitus while in service. The examiner made no specific findings as to the etiology of the Veteran's tinnitus. In a November 2012 written statement, the Veteran reiterated that his tinnitus was "started with/caused by my military service." He denied experiencing any acoustical trauma after service separation. The Veteran asserts that he initially experienced chronic tinnitus during active service after serving as an aircraft crewman and aerial refueling boom operator for approximately two years. The Veteran is competent to describe his experience of ringing in the ears during and after service. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). The Board has no basis to question the Veteran's credibility. The Veteran's ringing of the ears has been diagnosed as tinnitus by a competent audiological professional. The Veteran has reported that he experienced chronic tinnitus after service. His statements are found to be competent, credible and probative. While examining VA audiologists concluded that the Veteran's chronic tinnitus was not related to active service due to the absence of any inservice complaints or treatment for either hearing loss or tinnitus, Mr. Lavoie determined that the Veteran's tinnitus was related to his extensive inservice aircraft noise exposure. The Board observes that the VA examiners failed to either find that the Veteran's subjective inservice history of tinnitus was not credible or to advance any findings as to etiology of the disability beyond "a combination of past and present medical pathologies." To the extent which the adverse VA opinions rely on the absence of inservice documentation of tinnitus, they are of little probative value. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (concluding that the lack of actual evidence does not constitute substantive negative evidence). Given these facts, the Board finds that the evidence of record is in at least equipoise as to whether the Veteran's chronic tinnitus is etiologically related to his extensive aircraft noise exposure during active service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. ORDER Service connection for tinnitus is granted. REMAND The record reflects that the Veteran either applied for and/or is in receipt of Social Security Administration (SSA) disability benefits. An April 1998 written statement from Dr. McAfee to the Veteran's attorney notes that the attorney had requested information about the Veteran's "Social Security disability status." In July 1998, the doctor submitted the Veteran's physical evaluation to the State of California's Department of Social Services - Disability and Adult Programs Division. Documentation of the Veteran's SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran's claim is not of record. The Court has clarified that VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). In reviewing the record, the Board observes that the clinical and examination findings of record are in apparent conflict as to the etiology and relationship of the Veteran's chronic cervical spine disabilities and fibromyalgia to active service and the Veteran's PTSD with major depressive disorder, post-operative left shoulder disorder, and other service-connected disabilities. The Veteran's service treatment records reflect that he was involved in a March 1974 inservice motorcycle accident. He complained of neck and left shoulder pain and was found to have sustained a left acromioclavicular joint separation requiring surgical repair. A July 1998 physical evaluation from Dr. McAfee conveys that the Veteran was diagnosed with "fibromyalgia associated with severe depression, migraines, joint pain, cognitive dysfunction, and generalized flu-like symptoms." The report of the October 2011 VA examination for compensation purposes notes the Veteran's history of fibromyalgia, a post-service worker's compensation claim involving the cervical spine, and a 1992 motor vehicle accident. The examining VA nurse practitioner concluded that "due to interval history, it is unlikely that current neck condition can be attributed to service" and "PTSD is not known to cause or aggravate fibromyalgia." The examiner did not reference either the inservice March 1974 motor vehicle accident, Dr. McAfee's July 1998 diagnosis, or the Veteran's service-connected major depressive disorder. In a November 2012 written statement, the Veteran asserts that he sustained a chronic left hip disorder secondary to his recently service-connected right ankle and left ankle disabilities. As service connection was initially granted for the Veteran's right ankle degenerative joint disease and left ankle sprain residuals following the October 2011 VA examination for compensation purposes, the evaluation did not address the issue of whether the Veteran's claimed chronic left hip disorder was aggravated by his service-connected ankle disabilities. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the complexity of the issues raised and the apparent conflict in the clinical findings of record, the Board finds that additional VA orthopedic evaluation which addresses the Veteran's chronic cervical spine and left hip disabilities and fibromyalgia is necessary. Clinical documentation dated after June 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). In a November 2012 statement, the Veteran requested an independent medical opinion/examination as allowed under 38 C.F.R. § 3.328 regarding the service-connected left shoulder disability. It was contended that the recent compensation and pension examination findings did not accurately describe his condition. He indicated that he was able to only move his arm about two inches from his side and that the movement caused pain. Independent medical opinions may be warranted in claims that involve medical complexity or controversy. 38 C.F.R. § 3.328 (2012). In this case, there is no such medical complexity or controversy. The Veteran seeks a private medical examination because he has indicated that he disagrees with clinical findings shown on the October 2011 VA examination regarding the left shoulder. A review of the examination report shows that the examiner provided clinical finding regarding range of motion of the left shoulder, to include notation of pain on motion and functional loss. The Veteran's disagreement with examination report which provided adequate clinical findings regarding the left shoulder disability is not sufficient to result in a finding of medical complexity or controversy in this case and an independent medical opinion is not warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his claimed bilateral hearing loss, left hip disorder, cervical spine disorder, lumbar spine disorder, fibromyalgia, right shoulder disorder, bilateral hand disorder, and right foot disorder and service-connected left shoulder disorder and sinusitis after June 2012, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record all VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after June 2012. 3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits or the denial thereof and copies of all records developed in association with the Veteran's claim for incorporation into the record. 4. Then schedule the Veteran for a VA orthopedic examination for compensation purposes conducted by a physician in order to assist in determining the current nature and etiology of the Veteran's chronic cervical spine and left hip disabilities and fibromyalgia. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic cervical spine disorder, left hip disorder and/or fibromyalgia is related to the Veteran's inservice duties as an aerial refueling boom operator, his March 1974 motorcycle accident, and/or his inservice neck and pain complaints; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to a service-connected disability or disabilities. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A 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. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this Remand. The report should be returned to the examiner if it is deficient in any manner. 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs