Citation Nr: 1319392 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-22 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disorder. 3. Entitlement to an initial rating in excess of 10 percent for a left knee disorder. 4. Entitlement to service connection for a depressive disorder. 5. Entitlement to service connection for fibromyalgia, to include as secondary to a psychiatric disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to April 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In a July 2011 decision, the Board denied service connection for tinnitus and fibromyalgia, initial ratings in excess of 10 percent for right and left knee disorders, and a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). In addition, the Board remanded the claims of entitlement to service connection for a gastrointestinal disorder and a left upper extremity disorder, a rating in excess of 30 percent for bilateral pes planus, and a temporary total convalescence rating for a service-connected disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion to Vacate and Remand (Joint Motion), the Court, in a July 2012 Order, vacated the portion of the July 2011 decision which denied service connection for tinnitus and fibromyalgia and initial ratings in excess of 10 percent for right and left knee disorders and remanded the appeal to the Board. In the remand, the Court also ordered the Board to address a reasonably raised claim of entitlement to service connection for depression. The issues of entitlement to initial ratings in excess of 10 percent for a right and left knee disorders, entitlement to service connection for a depressive disorder, and entitlement to service connection for fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. The Board notes that there is no evidence of record that any development has been accomplished with respect to the claims which were remanded by the Board in July 2011, likely due to the Veteran's appeal of the issues discussed herein to the Court. Accordingly, the Board directs the RO to the July 2011 remand actions so that they can be completed along with those related to the issues being remanded herein. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran's currently diagnosed tinnitus is not related to service. CONCLUSION OF LAW Tinnitus was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in September 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative, particularly those before the Court, suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran's service treatment records are negative for any complaint, diagnosis or treatment for tinnitus. After separation from service, a February 2009 VA audiological examination stated that the Veteran's claims file had been reviewed. The Veteran reported a humming tinnitus, bilaterally, which occurred one to two times a day. He reported that the onset of the symptoms was in 1995. The examiner found that it was less likely as not that the tinnitus was a result of the Veteran's exposure to noise in the military service. The rationale was that the Veteran was separated from service in 1971 and the onset of tinnitus was in 1995. The preponderance of the evidence of record shows that the Veteran's tinnitus is not related to service or to a service-connected disability. The Veteran's service treatment records are negative for any diagnosis of tinnitus. While the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus, there is no evidence of record that tinnitus was diagnosed prior to 1995, approximately 24 years after the Veteran's separation from active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board notes that, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a Veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Accordingly, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. However, in this case, the Veteran reported that he first noticed his tinnitus symptoms in 1995, many years after his separation from active service. As such, the Veteran's own lay statements constitute evidence that the Veteran's tinnitus began after separation from active service. In addition, there is no medical evidence of record which relates the Veteran's currently diagnosed tinnitus to active service. The only medical evidence of record which opines on the etiology of the Veteran's currently diagnosed tinnitus is the February 2009 VA audiological examination report. That report opined that it was less likely as not that the Veteran's tinnitus was a result of his exposure to noise in military service. The Board notes that the Veteran has submitted copies of medical articles from the internet regarding the etiology of tinnitus. As those articles do not apply medical principles regarding causation or etiology to the facts of the Veteran's individual case, they do not provide competent evidence that any currently diagnosed tinnitus is related to service. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). In addition, while the articles could provide support for a claim under certain circumstances, to do so they must be combined with an opinion of a medical professional. Sacks, 11 Vet. App. 314. In this case, there is no medical evidence of record which provides a medical opinion which cites any of the articles submitted by the Veteran. Accordingly, the medical articles submitted by the Veteran do not provide competent evidence relating any currently diagnosed tinnitus to service. Accordingly, the preponderance of the evidence of record shows that the Veteran's currently diagnosed tinnitus is not related to service. As such, service connection for tinnitus is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Therefore, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is denied. REMAND The Veteran's right and left knee disorder claims were previously denied on the basis that the Veteran did not meet the criteria for a rating in excess of 10 percent under any relevant diagnostic code. The July 2012 Joint Motion stated that the February 2009 VA knee examination upon which the Board relied in its July 2011 decision was inadequate. Specifically, the Joint Motion stated that the examiner failed to provide an opinion as to any additional functional loss or pain due to repetitive use of the right knee and during a flare-up in both knees. Accordingly, the Board finds that the February 2009 VA knee examination is inadequate. If VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Veteran's right and left knee claims must be remanded so that he can be provided with an adequate medical examination to determine the current severity of his right and left knee disabilities. The July 2012 Joint Motion found that the Board had failed to address a reasonably raised claim of entitlement to service connection for depression. Specifically, the Joint Motion stated that the evidence of record showed that the Veteran had been diagnosed with depression, but the Board failed to address that potential claim in conjunction with the issue of entitlement to an increased rating for PTSD. However, the Board notes that, in the July 2012 Joint Motion, the Veteran specifically abandoned his claim of entitlement to a rating in excess of 50 percent for PTSD. As a result, that portion of the July 2011 Board decision remains final and that issue is not before the Board. Therefore, the Board does not have jurisdiction to consider whether the Veteran's depressive disorder symptoms were taken into consideration in conjunction with the 50 percent rating assigned for the Veteran's PTSD. 38 C.F.R. § 20.1100 (2012). In addition, while the Joint Motion stated that the claim of entitlement to service connection for depression had been raised by the record, the Veteran has never been provided with a rating decision which addressed that issue directly, let alone had the claim denied, filed a timely notice of disagreement with the denial, received a statement of the case, and perfected an appeal of that issue to the Board. Accordingly, the Board does not have jurisdiction over the issue of entitlement to service connection for depression, and it is referred to the RO for initial adjudication. With respect to the issue of entitlement to service connection for fibromyalgia, the July 2012 Joint Motion found that this issue was inextricably intertwined with the issue of entitlement to service connection for depression. Accordingly, the Board also finds that the fibromyalgia claim is inextricably intertwined with the depression claim and must be remanded, pending adjudication of the depression claim. When a determination on one issue could have a significant impact on the outcome of another issue, the issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right and left knee disabilities. The examiner must review the claims file and should note that review in the report. The examiner must conduct range of motion studies of the right and left knees, to specifically include flexion and extension, recording the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the degree of motion at which pain begins. The examiner must also state whether the Veteran experiences recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. If recurrent subluxation or lateral instability is found, the examiner must state whether the symptom is best characterized as slight, moderate, or severe in degree. The examiner must also state whether the Veteran experiences additional functional limitations during flare-ups of the right and left knee disabilities. If additional functional limitations are found to exist during flare-ups, the examiner must estimate the limitations in terms of additional loss of degrees of range of motion on flexion and extension. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 2. Issue a rating decision which addresses the issue of entitlement to service connection for depression. If the claim is denied, inform the Veteran that he must perfect an appeal as to this issue if he desires appellate adjudication of the issue. 3. Then, readjudicate the remaining claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs