Citation Nr: 1316152 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-34 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a temporary total disability rating due to convalescence for a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from May 1974 to July 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2006, March 2010, and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has been previously before the Board. In an April 2012 decision, the Board denied the issues of entitlement to service connection for tinnitus and a right shoulder disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Court granted a Joint Motion of the Parties and remanded the case to the Board for action consistent with the joint motion. The issue of entitlement to an increased disability rating for a low back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is remanded to the AOJ for the appropriate action. The issues of entitlement to service connection for a right shoulder disability and of entitlement to a temporary total disability rating for convalescence are addressed in the REMAND following the ORDER section of this decision. FINDING OF FACT Tinnitus is not etiologically related to noise exposure sustained in active service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in October 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The October 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has tinnitus as a result of hazardous noise exposure sustained in active service. Specifically, the Veteran has reported that his exposure to hazardous noise in the form of large and small arms fire, large engine truck noise, tank noise, and war game noise caused his tinnitus. A review of the STRs is negative for complaints of or a diagnosis of tinnitus while the Veteran was in active service. In January 1977, the Veteran was treated for an ear infection, but did not report tinnitus at that time. The Veteran was afforded audiograms while in active service in February 1976, April 1976, April 1977, February 1978, February 1989, June 1990, and May 1994. There is no indication from any of the audiogram reports that the Veteran reported tinnitus during active service. It was noted on the February 1989 audiogram report that the Veteran was not routinely exposed to hazardous noise. At his May 1994 retirement examination, the Veteran denied experiencing any ear trouble during active service and there is no indication from the examination report that the Veteran had tinnitus at the time of his retirement. In August 1994, the Veteran filed a claim of entitlement to service connection for several disabilities, to include bilateral hearing loss disability. The Veteran did not file a claim of entitlement to service connection for tinnitus or ringing in the ears at that time. In September 1994, the Veteran was afforded a VA audiology evaluation. There is no indication from the evaluation report that the Veteran reported symptoms of tinnitus at that time. In August 1996, the Veteran was afforded a VA ear examination and audiology evaluation. At that time, the Veteran reported symptoms of hearing loss and chronic ear infections, but did not report symptoms of tinnitus. There was no diagnosis of tinnitus made at that time. In July 2004, the Veteran was afforded an audiology consultation at the VA Medical Center. At that time, the Veteran was noted to have tinnitus and the audiologist noted that it was possible that the Veteran's tinnitus was related to his active service. Medical opinions expressed in speculative language ["could have caused", etc.] do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board finds that the opinion provided by the July 2004 audiologist is speculative in nature as the audiologist stated that it was "possible" that the Veteran's tinnitus was related to his active service. Therefore, this opinion is not adequate to serve as the basis of a grant of entitlement to service connection. In a September 2009 private audiology report, the Veteran reported that he experienced occasional tinnitus. However, there is no indication from the report that the Veteran reported that he had been experiencing tinnitus since his active service. Further, the Veteran's private audiologist did not diagnose tinnitus related to the Veteran's active service. In March 2010, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported that he experienced constant, bilateral tinnitus that had its onset after his service in Desert Storm. Based on a thorough review of the record, the history provided by the Veteran, and an examination of the Veteran, the examiner diagnosed tinnitus. The examiner opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma during active service. In this regard, the examiner noted that the Veteran denied tinnitus at his 1994 VA audiology evaluation. Additionally, the VA examiner noted that while the Veteran has now reported that he first experienced tinnitus after his service Desert Storm, he did not correlate the tinnitus to a specific acoustic trauma event during active service. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of tinnitus. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board notes that while the Veteran reported at his March 2010 VA audiology evaluation that he has experienced tinnitus since active service, these statements are inconsistent with the other evidence of record. In this regard, as discussed above, the Veteran retired from active service in July 1994 and filed a claim for service connection for several disabilities, to include bilateral hearing loss disability, within one month of his retirement. However, the Veteran did not file a claim of entitlement to service connection for tinnitus at that time. In fact, the Veteran did not even file a claim of entitlement to service connection for tinnitus until September 2009, approximately 15 years following his retirement from active service. Further, the Veteran was afforded VA audiology evaluations in September 1994 and August 1996, yet he did not report experiencing tinnitus at either of those examinations. There is no evidence of record indicating that the Veteran had ever reported experiencing symptoms of tinnitus until July 2004, approximately 10 years following the his retirement from active service. Because of the inconsistent statements provided by the Veteran regarding the onset of his tinnitus and the absence of a claim of entitlement to service connection for tinnitus until 15 years following his retirement from active service, despite filing claims of entitlement to service connection for other ear related disabilities during that time, the Board finds that the Veteran's statements that he has experienced tinnitus since service in Desert Storm are not credible. In sum, the Veteran's reports of experiencing tinnitus since serving in Desert Storm are not credible and the VA examiner has competently opined that the Veteran's tinnitus is not related to his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for tinnitus is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is denied. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. At the outset, the Board notes that the Veteran submitted an August 2012 statement that the Board has found to be a timely notice of disagreement with the denial of entitlement to a temporary total disability rating based on convalescence for a service-connected disability in the June 2012 rating decision. A review of the record shows that the Veteran was not furnished a statement of the case in response to his notice of disagreement. Because the notice of disagreement placed this issue in appellate status, the matter must be remanded for the originating agency to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). With regard to the Veteran's claim of entitlement to service connection for a right shoulder disability, the Veteran has asserted that he first experienced right shoulder problems while he was in active service and that he has continued to experience right shoulder problems since that time. The Veteran is competent to state when he first experienced symptoms of a right shoulder disability and that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible in this regard. In December 2009, the Veteran was afforded a VA examination to determine the nature and etiology of any currently present right shoulder disability. A review of the examination report shows that the examiner diagnosed postoperative decompression impingement syndrome of the right shoulder and opined that it was less likely as not that the Veteran's right shoulder disability was caused by events which occurred while the Veteran was in active service. In this regard, the examiner noted that there was only one instance of treatment for a right shoulder disability while the Veteran was in active service and there was no indication from the record that the Veteran sought treatment for a right shoulder disability until several years following his retirement from active service. The Board finds that this opinion is inadequate for adjudication purposes. In this regard, a review of the STRs of record shows that there are several records indicating that the Veteran received treatment for right shoulder pain over the course of several years while in active service. Therefore, it appears as though the examiner did not review the entire record in preparation of the opinion. Further, the VA examiner failed to consider the Veteran's statements that he has had right shoulder problems ever since active service. As the Veteran is competent to report the onset of his symptoms and the Board has found these statements credible, they must be considered by the examiner. Therefore, as this opinion is inadequate for adjudication purposes, it cannot serve as the basis of a denial of entitlement to service connection. Additionally, the Veteran has also claimed that in 2000 he fell as a result of his service-connected left knee disability and may have further injured his right shoulder. The Board notes that service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As such, if the Veteran did in fact fall and further injured his right shoulder as a result of his service-connected left knee disability, then he could be entitled to compensation for such. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present right shoulder disability, to include whether it was caused or chronically worsened by any of the Veteran's service-connected disabilities. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should provide the Veteran with a Statement of the Case on the issue of entitlement to a temporary total disability rating based on convalescence for a service-connected disability. It should also inform the Veteran of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of his right shoulder disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion with respect to the Veteran's right shoulder disability as to whether there is a 50 percent or better probability that the disability is related to his active service or was caused or chronically by any of his service-connected disabilities, to specifically include a fall sustained in 2000 caused by his service-connected left knee disability. The examiner should presume that the Veteran is a reliable historian with respect to his statements regarding the unremitting nature of his right shoulder symptoms. The supporting rationale for all opinions expressed must be provided. 4. The RO or the AMC should undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs