Citation Nr: 1310773 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 11-12 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an eye disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for temporomandibular joint dysfunction. 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to service connection for a lumbar spine disorder. 8. Entitlement to service connection for a cervical spine disorder. 9. Entitlement to service connection for an ankle disorder. 10. Entitlement to service connection for a knee disorder. 11. Entitlement to service connection for an upper right arm/shoulder disorder. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2012, the Veteran testified before the undersigned Veterans Law Judge before a hearing at the RO. A transcript of the hearing is included in the claims file and has been reviewed. The Board notes that it has reviewed the evidence of record to include the Veteran's virtual VA claims file. A review of evidence reveals that certain evidence has been added to the claims file since the most-recent October 2011 statement of the case (SOC). In November 2012, the Veteran waived initial review of this evidence by the Agency of Original Jurisdiction (AOJ). As such, the evidence has been considered in the decision below. 38 C.F.R. §§ 19.31, 20.1304 (2012). The issues regarding service connection for headaches, TMJ, and psychiatric, lumbar, cervical, ankle, knee, and right upper arm/shoulder disorders 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 October 19, 2012, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran requesting withdrawal of the appeal for service connection for an eye disorder. 2. The Veteran does not have a hearing loss disability under VA guidelines. 3. The Veteran experienced ringing in her ears during active duty and ever since. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran of service connection for an eye disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. A bilateral hearing loss disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 3. Tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim for Service Connection for an Eye Disorder 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. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, on October 19, 2012, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran requesting withdrawal of the appeal for service connection for an eye disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration of that issue. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed II. Claims to Service Connection for Hearing Loss and Tinnitus Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and 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)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Veteran was provided with a notification letter in July 2007. The letter informed the Veteran of the evidence and information necessary to substantiate her claims for service connection, and informed the Veteran regarding her and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Further, the letter was provided to the Veteran prior to the initial unfavorable AOJ decision issued in December 2007. With regard to VA's duty to assist, the record indicates that in the notification letter, the RO requested from the Veteran information regarding medical evidence pertaining to her claims for service connection. The record shows that the RO included in the claims file the Veteran's service treatment records (STRs) as well as relevant private treatment records and reports. Furthermore, the Veteran underwent VA compensation examination into her claim for hearing loss and tinnitus in February 2012, a report of which is of record. In the report, the VA examiner detailed the nature of the Veteran's hearing capacity, indicated a review of the claims file, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran. The findings are supported by data and reasoned explanations (even though, for the reasons detailed below, the Board disagrees with the examiner's ultimate conclusion regarding the issue of service connection for tinnitus). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claim for service connection. Service Connection for Hearing Loss The Veteran contends that she incurred a hearing loss disability during service. 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. 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. 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). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to chronic diseases found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Sensorineural hearing loss is considered an organic disease of the neurological system. Therefore, it qualifies as a chronic disease. 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). In assessing claims for service connection, 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 she experienced in service or at any time after service when the symptoms she 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 layperson is competent to identify the medical condition; he or she 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). 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). Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran testified during her hearing that she was exposed to acoustic trauma during service due to her duties working with aircraft. The Board finds her testimony credible. However, service connection is unwarranted here because the evidence of record indicates that the Veteran does not have a hearing loss disability under 38 C.F.R. § 3.385. The Veteran underwent VA compensation audiology examination in February 2010. That report noted scores at 20 or below in each relevant auditory threshold (between 500 and 4000 Hz). Moreover, the examiner noted speech recognition scores of 100 for each ear. These results are not countered by any medical findings in the private medical records submitted into the claims file. The Board recognizes that the Veteran is competent to describe her hearing loss symptoms as she experiences them, and does not doubt her testimony in that regard. However, to qualify as a disability for VA compensation purposes, certain auditory thresholds must be met. Those are objectively measured with specialized equipment. As such, the Board finds that the Veteran is not competent to assess her auditory thresholds to make a diagnosis sufficient for VA compensation purposes. As no competent evidence of record counters the VA audiologist's findings, or demonstrates hearing loss under 38 C.F.R. § 3.385, the Board finds that the Veteran has no current hearing loss disability for VA disability compensation purposes. 38 C.F.R. § 3.385. In the absence of proof of a current disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, a service connection finding for hearing loss is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Tinnitus By contrast, the record indicates that the Veteran has a current tinnitus disorder which she attributes to the in-service acoustic trauma she experienced working with military aircraft. In this matter, the evidence demonstrates that the Veteran experienced acoustic trauma during service, experienced tinnitus during service, has continued to experience symptoms 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 she 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 also notes that the February 2010 VA examiner noted a diagnosis of tinnitus. The evidence demonstrating in-service acoustic trauma consists of the Veteran's DD Form 214 which notes her occupation during service as a Strategic Electronics and Environmental Specialist, and her training as a mechanic. In finding evidence of in-service acoustic trauma, the Board considered documentary evidence detailing the Veteran's in-service duties with aircraft, to include a photograph of the Veteran atop a military aircraft's engine. The Board also considered the Veteran's lay statements of record, to include testimony before the Board in October 2012. The Board particularly notes her testimony that she worked regularly around loud aircraft, and that she began experiencing ringing in her ears during service. Again, the Veteran is competent to attest to loud noises and ringing in her ears, both of which are observable, so the Board finds her contentions of probative value. The Board must now determine whether the record supports the Veteran's contention that her in-service acoustic trauma and tinnitus symptoms relate to her current tinnitus. The Board finds the evidence of record in favor of the assertion that the in-service acoustic trauma and tinnitus symptoms relate to the current tinnitus. Although the February 2010 VA examiner attributed the Veteran's tinnitus to medications or subjective complaints rather than service, the Board finds that the Veteran has credibly testified to having experienced tinnitus during service, and generally a worsening of her hearing capacity following service, to include her reported ringing in the ears. This finding is based primarily on the Veteran's testimony before the Board in October 2012, during which she indicated that she has experienced tinnitus since active duty. Again, her 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 her in-service exposure to acoustic trauma, and the symptoms she began experiencing following that noise exposure. In sum, the Veteran's assertions are tantamount to a nexus opinion in the case of the wholly lay observable disability of tinnitus. She is competent to provide such an opinion, and it is credible, in light of her testimony which is not contradicted by the record. As such, it places the evidence in equipoise with the February 2010 opinion. Accordingly, 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 The appeal of service connection for an eye disorder is dismissed. Service connection for bilateral hearing loss is denied. 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 headaches, TMJ, and psychiatric, lumbar, cervical, ankle, knee, and right upper arm/shoulder disorders. Initially, the Board notes that the record supports the Veteran's contentions to having experienced these disorders during service. The voluminous STRs note multiple complaints and treatment for each of these disorders. Moreover, based on the Veteran's lay statements of record, the Board finds probative value in her assertions to having experienced these disorders during service. As indicated, she is competent to attest to observable symptoms, such as orthopedic, head, or psychiatric pain, and the Board has found her statements credible regarding the way in which duties as an aircraft maintenance specialist caused these disorders. The remaining questions before the Board are whether the Veteran currently has each of these disorders, if so whether the disorders were incurred in service, and if not incurred in service, whether the disorders preexisted service and were aggravated during service. This last question is of particular importance because the record makes clear that, although the Veteran's enlistment report of physical examination is negative for any of these disorders, she experienced two motor vehicles accidents in the several-month period prior to entering service. Specifically, the Veteran's STRs note an automobile accident in March 1980, which caused head and knee injuries, and a November 17, 1980 motorcycle accident (reportedly occurring two days prior to commencement of active service) which may have caused head injuries as well. Certain STRs also indicate that the Veteran stated during service that she had had a headache disorder since the age of 3 for which she received inpatient treatment as a child. The Board notes that the Veteran underwent a VA compensation examination in January 2010 which addressed certain of the disorders subject to this remand. However, the Board finds the examination and accompanying report and opinion insufficient. The report did not indicate a review by the examiner of the Veteran's medical history to include the claims file, and the report did not address several of the claims at issue. A November 2012 private nexus opinion is of record relative to the headaches, and the cervical and lumbar spine disabilities. However, while the opinion attempts to link the Veteran's current disorders to her service, it does not consider the possibility of the preexisting disabilities, based on the known MVA's prior to service. Therefore, it is insufficient evidence on which to base a grant of benefits. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he or she suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Those requisites have been met in this case. In this matter, the Veteran should be provided with another VA compensation examination into her claims, which addresses the questions remaining here - i.e., whether the Veteran has current headaches, TMJ, and psychiatric, lumbar, cervical, ankle, knee, and right upper arm/shoulder disorders, and if so, whether the disorders were incurred in service, or whether they preexisted service and were aggravated therein. The Board also notes that relevant medical evidence may be outstanding. First, the record contains no treatment records pertaining to treatment the Veteran received for her pre-service motor vehicle accidents. Second, during her October 2012 Board hearing, the Veteran indicated that she had received therapy for a psychiatric disorder. The RO/AMC should attempt to retrieve any such records that are available. Accordingly, the case is REMANDED for the following: 1. Attempt to obtain and associate with the claims folder any outstanding private medical records pertaining to March and November 1980 motor vehicle accidents, and pertaining to psychiatric treatment the Veteran noted in her October 2012 Board hearing. If such records are not available, the claims file should be documented accordingly. 2. After the action above is completed, to the extent possible, schedule the Veteran for appropriate VA examinations to determine the diagnosis, nature, and etiology of any headache, TMJ, or psychiatric disorders, and of any neck, back, ankle, knee, or upper right arm disorders. Any indicated tests should be accomplished. The examiners should review the claims folder prior to the examinations, to include any newly associated records obtained as a result of this remand. The examiners are asked to provide opinions as to the following: a. Does the Veteran have the current disorders at issue in this remand (i.e., headache, TMJ, or psychiatric disorders, or neck, back, ankle, knee, or upper right arm disorders)? In addressing the issue of a psychiatric disorder, the examiner should diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM-IV). b. If the examiners find current disorders (i.e., current headache, TMJ, or psychiatric disorders, and any neck, back, ankle, knee, or upper right arm disorders), the examiners should comment on whether clear and unmistakable evidence shows that the Veteran had these disorders prior to commencement of active service on November 18, 1980. c. If clear and unmistakable evidence shows that the Veteran had these disorders prior to service, the examiners should then comment on whether clear and unmistakable evidence shows that the respective disorder was not aggravated (i.e., permanently worsened) by active service? Please refer to the Veteran's September 1980 enlistment report of medical examination which found the Veteran to be normal in all respects at issue in this case. Please also refer to the voluminous STRs and notations therein which detail two motor vehicle accidents prior to service. Also note that the Veteran is competent and credible to attest to experiencing pain in service. d. If it is concluded that the Veteran did not have certain disorder(s) at issue prior to service (if the answer to "(b)" is no for any disorder at issue), please comment on whether it is as likely as not (50 percent probability or higher) that a current disorder began in or is related to service? In answering this question, please refer to the Veteran's competent and credible lay statements claiming injuries related to her duties working with aircraft during service. Please also refer to a November 2012 letter from the Veteran's chiropractor, who states that headaches, and lumbar and neck disorders relate to active service. e. Please explain the reasons behind any opinions expressed and conclusions reached. Each examiner is further 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. 3. 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. 4. 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 SOC as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. 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