Citation Nr: 1313289 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-38 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to endoscopy procedure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to August 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to VA endoscopy procedure and individual unemployability; and a June 2010 rating decision that denied service connection for tinnitus. In June 2012, the Veteran presented sworn testimony during a Travel Board hearing in Fargo, North Dakota, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to endoscopy procedure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's currently diagnosed tinnitus is the result of his active service. CONCLUSION OF LAW Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As to the Veteran's claim for service connection for tinnitus, this claim has been granted, as discussed below. Any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran alleges that he currently suffers from tinnitus as a result of his active military service. Specifically, he claims that he was exposed to loud noise while serving in the Navy and that he has experienced ringing in his ears since that time and as a result of the in-service noise exposure. He, therefore, believes that service connection for tinnitus is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. As tinnitus is not explicitly recognized as chronic under 38 C.F.R. § 3.309(a), there is some questions as to whether the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus may occur as a symptom of nearly all ear disorders, including sensorineural (noise-induced) hearing loss. See The Merck Manual, Section 7, Chapter 82, Approach to the Patient with Ear Problems. Further, "high frequency tinnitus usually accompanies [noise-induced] hearing loss." Id., Section 7, Ch. 85, Inner Ear. Such conveys the notion that tinnitus and sensorineural hearing loss often share a common etiology. In this regard, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. Service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. It thereby stands to reason that tinnitus should also enjoy the presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 and be considered under the concept of continuity of symptomatology as clarified by Walker. In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In May 2010, a VA examiner diagnosed the Veteran with tinnitus. As such, the first element of Hickson is met. The Veteran asserts that he was exposed to loud noise while serving as a boiler technician in the Navy. A review of his DD-214 reflects a military occupational specialty of electrical/mechanical equipment repairman. Additionally, he has been granted service connection for hearing loss based on in-service noise exposure. As such, in-service noise exposure can be conceded and the second element of Hickson is also met. The remaining question is whether a medical nexus exists between the Veteran's in-service noise exposure and his current tinnitus. The Veteran was afforded a VA audiological examination in May 2010. The examiner noted the Veteran's in-service noise exposure as a boiler technician, as well as his post-service noise exposure in construction. She concluded that the Veteran's pre-service hearing loss was worsened by his in-service noise exposure. However, as the Veteran was unable to recall the onset of his tinnitus symptoms, she was unable to determine whether they were related to his military service without resorting to mere speculation. Despite his inability to provide a date of onset for his tinnitus symptoms at his May 2010 VA examination, the Veteran did provide testimony at his June 2012 Board hearing as to the onset of his tinnitus symptoms. Notably, when asked when he first noticed the ringing in his ears, he responded that it was while he was in the Navy. He later conceded that it was difficult to discern the ringing in his ears over the sound of the turbines. He did not retract this date of onset, however. A review of the remainder of the claims file is negative for any other statements regarding the date of onset of the Veteran's tinnitus symptoms, including any statements which contradict his June 2012 hearing testimony. Despite the lack of nexus opinion from the May 2010 VA examiner regarding a relationship between tinnitus and acoustic trauma in service, the Veteran is competent to offer a description of symptoms, such as ringing in his ears, that he experienced in service, and to describe a continuity of symptoms since service. A layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran testified at his June 2012 Board hearing that he first experienced ringing in his ears in service. Although he was unable to provide such information at the May 2010 VA examination, the Board finds that there is no evidence of record to overtly contradict this testimony, such as a denial of such continuous symptoms or affirmation of a different date of onset. Admittedly, the Veteran's service treatment records remain silent for any complaints, treatment, or diagnoses of tinnitus during active duty. However, as noted in Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), the Board may not find that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. In this case, it must be considered that tinnitus is among the types of disabilities that lend themselves to lay observation. See Charles v. Principi, 16 Vet. App. 370 (2004). The United States Court of Appeals for Veterans Claims (Court) has consistently held that credible evidence of continuity of symptomatology is one type of evidence that may indicate a current disability is associated with service, specifically with regard to tinnitus. See Charles, supra. Therefore, the Board finds that the Veteran has a current diagnosis of tinnitus; that he has reported a continuity of symptomatology since service; that there is no convincing evidence to contradict the Veteran's reports of tinnitus symptoms since service; and that the disability under consideration in this appeal is of the type that lends itself to lay observation. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for tinnitus is granted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to endoscopy procedure. The Veteran claims that his currently diagnosed hepatitis B is the result of the improper disinfection of endoscopic equipment used during his two colonoscopies at the VA Medical Center (VAMC) in Miami, Florida. He asserts that compensation under 38 U.S.C.A. § 1151 is warranted. A March 2011 letter from the Miami VAMC informed the Veteran of his possible exposure to a potential health risk. Specifically, the letter indicates that a section of tubing attached to endoscopic equipment was rinsed but not disinfected according to the manufacturer's recommendations between May 2004 and March 2009. A second letter from the Miami VAMC, dated in May 2009, informed the Veteran that, after an exhaustive clinical review of his medical record by a dedicated and trained staff physician, it was determined that he was not exposed to the suspect section of tubing. Corresponding VA treatment records, marked "Special Care Chart Review," and dated in April 2009, indicate that a physician and a registered nurse confirmed the type and serial numbers of the endoscopes used for the Veteran's November 2004 VA colonoscopy. However, the Board's review of the VA treatment records indicates that the Veteran underwent two colonoscopies at the Miami VAMC in November 2004 and in 2006. See VA treatment records, March 2009, July 2009. There are no VA treatment records to indicate that a Special Care chart review was performed to determine what equipment was used for the Veteran's 2006 colonoscopy. As 2006 was within the period of time that the suspect section of tubing was used according to the March 2011 Miami VAMC letter, the Board finds that the case must be remanded to determine whether the Veteran's 2006 colonoscopy utilized the suspect equipment. Additionally, the Board notes that a November 2008 VA treatment record indicates that the Veteran receives disability benefits from the Social Security Administration (SSA). Although the treatment record does not indicate whether these benefits are related to the Veteran's hepatitis B, the Board finds that this at least raises the possibility of outstanding SSA records that could be relevant. Under the duty to assist, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include SSA. See 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). As the VA treatment record indicates that there may be outstanding SSA records that are relevant to the Veteran's appeal, the AMC should also attempt to obtain any relevant SSA records on remand. As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Miami, Fargo, Bronx, and Sioux Falls VA Medical Centers, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. Appropriate efforts should be taken to verify what equipment was used during the Veteran's 2006 colonoscopy at the Miami VAMC, including a Special Care chart review. All attempts to verify this information must be documented in the claims file. 3. Appropriate efforts should be taken to obtain a complete copy of the Veteran's SSA disability determination with all associated medical records. If, after making reasonable efforts, the AMC cannot obtain these records, it must specifically document what attempts were made to obtain the records, and indicate in writing that further attempts to locate or obtain any such government records would be futile. The AMC must then: (a) notify the Veteran and his representative of the records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis B due to endoscopy procedure should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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 2002 & Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs