Citation Nr: 1312291 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-36 809A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for burn scars on the legs. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran; his spouse just observed ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active military service from February 1970 to February 1972. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, as support for his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. His wife also attended the hearing but just observed. The claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Including in his rather recent hearing testimony, the Veteran explains that while serving aboard the USS Robert L. Wilson, he was a gunner's mate, working in the turret, itself. He indicates that he participated in "live fire" exercises while aboard the ship in the Guantanamo Bay in 1971, firing torpedoes, depth charges, and anti-craft rounds for drones. He recalls these exercises lasting pretty much all day. His DD Form 214 reveals that his military occupational specialty (MOS) was boatswain mate and confirms he served in the U.S. Navy aboard this vessel from October 1970 until his discharge from service in February 1972. Concerning his claim of entitlement to service connection for burn scars on his legs, the Veteran asserts that during those "live fire" exercises, the hot shell casings would fall on the floor and then bounce onto his legs, burning a hole through his dungarees, and then onto his skin. He has submitted photographs of himself purportedly showing burn scars on his legs. In addition, he has submitted lay statements attesting to the presence of these scars and their relation to his military service, and the hearing transcript includes similar testimony. His service treatment records (STRs) show no complaints or treatment for any such burn scars. The report of his February 1972 separation examination indicates he had three "identifying body marks, scars, or tattoos" at the time of that examination; but, again, there is no indication that any of these marks were caused by burns of the type alleged. At any rate, in further support of this claim, there is a December 2008 statement from one of the Veteran's treating physicians at the VA Medical Center (VAMC). This physician wrote that the burns scars on the Veteran's legs were as likely as not caused by his service in the Navy working in a gun turret. However, this physician has not provided any discussion of the underlying rationale of his opinion, which is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."); 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"). A medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (indicating the failure of the commenting physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990) (wherein the Court further recognized that a mere statement of opinion, without more, does not provide an opportunity to explore the basis of the opinion). VA will provide a medical examination for a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006), and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability (like pain, etc.), but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability). The threshold for determining whether the evidence "indicates" there "may" be a nexus between a current disability and an in-service or post-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. So, under the circumstances of this case, the Board finds that a VA compensation examination and medical nexus opinion would be helpful in resolving this claim of entitlement to service connection for these alleged burn scars. The Veteran has not yet undergone a VA compensation compensation examination to determine the etiology of any burn scars on his legs - and particularly insofar as whether these scars are residuals of burns sustained in the type of activity he alleges occurred during his military service aboard the USS Robert L. Wilson. Concerning his additional claim of entitlement to service connection for tinnitus, it is "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay perception and diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran describes the area in which he worked aboard ship as extremely loud. After long hours in the gun mount and the constant firing of the large guns, he says he developed consequent ringing in his ears, so tinnitus. In the December 2008 statement noted above, the Veteran's treating VA physician relayed the Veteran's complaints of ringing in his ears. This physician, however, did not also attribute this ringing in the Veteran's ears to the type of activity mentioned coincident with his military service aboard the USS Robert L. Wilson. It appears from this report that this physician was merely recording the Veteran's history without also offering an independent medical nexus opinion affirming this purported history. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by the examiner, does not constitute competent medical evidence supportive of a claim of entitlement to service connection). Further concerning this claim for tinnitus, since it is not amongst the conditions identified in 38 C.F.R. § 3.309(a) as necessarily "chronic", the Veteran resultantly cannot establish the required etiological linkage or nexus between any tinnitus he is currently experiencing and the events of his service merely by claiming he has experienced continuous tinnitus (i.e., continuity of symptomatology) since his service. See Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). Nevertheless, in light of his competent reports of having experienced tinnitus both during his service and ever since and his service personnel records confirming his MOS was boatswain mate aboard the USS Robert L Wilson, the Board finds that a medical examination and an opinion also is needed to assist in resolving this claim. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Schedule the Veteran for an appropriate VA compensation examination for a medical nexus opinion concerning the etiology of all burn scars on his legs. All diagnostic testing and evaluation needed to make this important determination of causation should be performed. After reviewing the entire record, including this remand, and examining the Veteran, the examiner is asked to: a) describe all scars on the Veteran's legs presently shown; and b) for each scar present, indicate the likelihood (very likely, as likely as not, or unlikely) it is the result of a burn, such as a shell casing burn (or embedment) the Veteran may have sustained in the course of his duties and responsibilities as a boatswain mate aboard the USS Robert L Wilson. *The opinion provided must be reconciled with all evidence of record, including the February 1972 separation examination report identifying scars, marks, or tattoos, but not also commenting on their etiology in terms of whether they were burn-related; the December 2008 VA etiology opinion; and the Veteran's competent report of continuing symptoms since service. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report - if necessary citing to specific evidence in the file to support conclusions. 2. Also schedule the Veteran for an appropriate VA compensation examination for a medical nexus opinion concerning the etiology of his tinnitus and, in particular, the likelihood (very likely, as likely as not, or unlikely) it is the result or consequence of noise exposure during his military service, including when considering his duties and responsibilities as a boatswain mate aboard the USS Robert L Wilson. All diagnostic testing and evaluation needed to make this important determination of causation should be performed. *The opinion provided must be reconciled with all evidence of record, including the Veteran's MOS; his report of exposure to loud noises aboard ship during "live fire" exercises; and his competent report of continuing tinnitus symptoms since service. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report - if necessary citing to specific evidence in the file to support conclusions. 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).