Citation Nr: 1322574 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-09 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a headache disorder. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to an initial disability rating greater than 0 percent for left eye trauma. 5. Entitlement to an initial disability rating greater than 10 percent for right thumb chronic tendonitis. 6. Entitlement to an initial disability rating greater than 10 percent for left thumb chronic tendonitis. 7. Entitlement to an initial disability rating greater than 10 percent for right knee degenerative joint disease. 8. Entitlement to an initial disability rating greater than 10 percent for left knee degenerative joint disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force from January 1983 to April 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2007 and September 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2012, the Veteran presented testimony at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For reasons discussed below, the issue of entitlement to service connection for bilateral hearing loss and all of the increased rating claims on appeal 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. There is probative medical and lay evidence of record establishing that the Veteran has a chronic headache disorder that began during his military service. 2. There is probative medical and lay evidence of record establishing that the Veteran's right shoulder rotator cuff syndrome, diagnosed post service, is consistent with the places, types, and circumstances of his in-service duties in the Air Force as a supply management specialist for over 20 years. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the Veteran has a headache disorder that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Resolving all reasonable doubt in his favor, the Veteran has right shoulder rotator cuff syndrome that was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist For the issues of service connection for headache and right shoulder disorders, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in August 2006, February 2007, and March 2007. In any event, since the Board is granting these particular service connection issues, there is no need to discuss whether there has been compliance with the notice and duty to assist provisions of VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). With regard to the service connection for bilateral hearing loss issue and all of the increased rating issues on appeal, the Board finds that further evidentiary development is needed and will be discussed herein below. Therefore, an analysis regarding compliance with the VCAA for these issues is not required at this time. Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Under 38 C.F.R. § 3.303, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted, the Board must consider both competent medical and lay evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The United States Court of Appeals for the Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and a veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Finally, in determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for Headaches The Veteran dates the onset of his headaches to his military service. He currently reports headaches occurring three times per week, at times lasting for 12 hours. He says he becomes light-sensitive and nauseous when experiencing these headaches. He takes ibuprofen to treat his headaches, which have worsened over time. See July 2006 claim; February 2010 VA Form 9; November 2012 hearing testimony at page 10. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, an October 2006 VA examination report reflects an assessment of migraine headaches, stable. Also of record are earlier private treatment records from Perry Family Medical Associates dated in July 2006 which note headaches. Consequently, the determinative issue in this case is whether the Veteran's headache disorder is attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Consistent with the Veteran's oral testimony that he sought treatment for headaches during service, service treatment records (STRs) reveal treatment for tension headaches in January 2001. It was noted that weather changes precipitate the headaches. Sinus medications were used to treat his headaches. A March 2005 STR also noted the Veteran's reports of headaches. Most importantly, at his April 2006 retirement examination, occasional tension headaches were reported and assessed. The Board notes that the Veteran is indeed competent to report symptoms of headaches during and after his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). Here, in evaluating the evidence of record, the Board finds that he has been credible in describing his in-service headaches. Overall, STRs provide probative evidence in support of his claim as they confirm a headache disorder during service. Additionally, as discussed above, the Veteran was treated post service for headaches in July 2006 and October 2006; both of these treatment dates fell only a few months after his discharge from service. Given the foregoing, the Board finds that there is probative lay and medical evidence (e.g., October 2006 VA examination) that the Veteran's confirmed in-service headaches have continued post-service. Thus, there is strong, circumstantial evidence of a nexus or link. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). As previously discussed, the Veteran is competent and credible in his lay testimony regarding continuous, ongoing headache symptomatology since service. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). See also Pierce v. Principi, 18 Vet. App. 440 (2004) (lay evidence may can be probative of frequency, prolongation, and severity of headaches). Moreover, the post-service complaints reported by the Veteran are sufficiently similar and close in time to the in-service complaints of headaches. There is no medical evidence to the contrary. In short, both during service and post-service, there is a diagnosis for a headache disorder. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a headache disorder. 38 U.S.C.A. § 5107(b). As such, the appeal is granted as to that issue. Analysis - Service Connection for a Right Shoulder Disorder The Veteran contends that his duties in his military occupational specialty (MOS) as a supply management specialist caused a right shoulder injury. Specifically, he says that he hurt his right shoulder moving bags off a shelf in 2006 during his final year of service. See November 2012 hearing testimony at pages 19-25. At other times however, he has denied any specific in-service right shoulder injury. See October 2006 VA general medical examination. In this case, the medical evidence shows the Veteran has a current right shoulder disorder. See Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In this regard, an October 2006 VA examiner assessed right shoulder rotator cuff syndrome following an interview with and an examination of the Veteran. Earlier private treatment records from Perry Family Medical Associates dated in July 2006 also note right shoulder pain with an onset around the time of discharge from service. In light of the foregoing, the determinative issue, as above, is whether the Veteran's right shoulder disorder is attributable to his service. See Watson, 4 Vet. App. at 314. Review of the Veteran's STRs reveal treatment for bilateral shoulder pain in June 2003. However, at his April 2006 STR retirement examination, no right shoulder problems were reported. The Veteran acknowledged at the hearing that he failed to report right shoulder problems at the time of his April 2006 retirement examination. Post service, a December 2006 TRICARE record noted that the Veteran underwent recent physical therapy for the right shoulder. Earlier right shoulder rotator cuff treatment in April 2006 was also documented. VA law provides that each disabling condition the Veteran seeks service connection for must be considered on the basis of the places, types, and circumstances of service as shown by the Veteran's service records, the official history of each organization in which the Veteran served, medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 CFR 3.303(a). In the present case, the Board finds that the Veteran's current diagnosis for right shoulder rotator cuff syndrome is consistent with the places, types, and circumstances of his service in the Air Force as a supply management specialist for over 20 years. His duties included frequent lifting and carrying. With regard to lay evidence, the Veteran is indeed competent to report symptoms of right shoulder pain during and a short time after his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). Overall, post-service, with regard to a nexus, there is probative lay evidence of a nexus or link between his current right shoulder problems and his in-service MOS-related duties. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). The Board does acknowledge that this lay evidence is not always consistent. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for right shoulder rotator cuff syndrome. 38 U.S.C.A. § 5107(b). The appeal is therefore granted as to that issue. ORDER Service connection for a headache disorder is granted. Service connection for right shoulder rotator cuff syndrome is granted. REMAND Before addressing the merits of the service connection claim for bilateral hearing loss and all of the increased rating claims, the Board finds that additional development of the evidence is required. First, the RO has already secured TRICARE outpatient treatment records from the 78th Medical Group dated through November 2006. TRICARE is a federal program operated by the Department of Defense for retirees and dependents. Generally, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). In short, if the Veteran has received additional relevant TRICARE treatment dated after November 2006, these records must be secured. Second, after securing the above evidence, the Veteran must be scheduled for a more contemporary VA audiology examination and opinion to determine if the Veteran currently exhibits bilateral ear hearing loss disability for VA purposes by the standards of 38 C.F.R. § 3.385, and if so, to determine the etiology of any current bilateral hearing loss on the basis of in-service incurrence. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran contends that his military occupational specialty (MOS) as a supply management specialist for 20 years in the Air Force exposed him to hazardous noise from the flight line and from warehouse equipment such as forklifts. STRs and an October 2006 VA audiology examination failed to reveal hearing loss disability in either ear according to the clear, established requirements of 38 C.F.R. § 3.385. Generally, a remand for a more contemporaneous examination is not required solely due to the passage of time after the most recent VA examination was prepared. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). In the present case, however, the Veteran has alleged that his hearing has worsened since 2006, such that obtaining a more current VA examination would appear to be the most prudent course of action given the age of the 2006 examination. See November 2012 hearing testimony at page 9. Finally, the Veteran must be scheduled for additional VA examinations to rate the current extent and severity of his service-connected left eye, bilateral thumb, and bilateral knee disabilities. His last VA examinations for his service-connected disabilities were in October 2006 and September 2007, over five years ago. Since that time, the Veteran asserts that his disabilities have worsened. See e.g., February 2010 Veteran's statement; November 2012 hearing testimony at pages 31, 46. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Therefore, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his left eye, bilateral thumb, and bilateral knee disabilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must secure relevant TRICARE records dated after November 2006 from any facility that may have treated the Veteran (such as the 78th Medical Group) and associate those documents with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file, and the Veteran must be notified. 2. After securing the above TRICARE treatment records and any other additional evidence, schedule the Veteran for a VA audiology examination by an appropriate clinician to determine whether the Veteran has current hearing loss disability in either ear for VA purposes by the standards of 38 C.F.R. § 3.385, and if so, to determine its etiology. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. The examination must include audiometric testing and speech recognition testing using the Maryland CNC Test. The examiner must identify whether the Veteran has current hearing loss disability in either ear for VA purposes by the standards of 38 C.F.R. § 3.385. If so, the examiner should opine as to whether is it at least as likely as not (i.e., 50 percent or more probable) that any current hearing loss is the result of military service - and, in particular, any acoustic trauma he may have sustained during that time. The examiner must explain the rationale for all opinions, to include any comment on any credibility issues raised by the record from a medical perspective. 3. After securing the above TRICARE treatment records and any other additional evidence, schedule the Veteran for the appropriate VA examinations to ascertain the current severity of his service-connected left eye, bilateral thumb, and bilateral knee disabilities. The purpose of these examinations is to determine the current nature and extent of his left eye, bilateral thumb, and bilateral knee disabilities, their effect on his occupational and social functioning, and their impact on his daily activities. The examinations should include any diagnostic testing or evaluation deemed necessary, including X-rays. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. Eye Examination - The examiner should provide a detailed description of any signs and symptoms associated with service-connected residuals of left eye trauma with decreased visual acuity. As noted above, all appropriate tests and studies (to include visual acuity and visual field testing) should be accomplished, and all clinical findings should be reported in detail. The functional effects caused by the Veteran's service-connected left eye disability should be fully addressed, and the examiner should provide an assessment of the impact of the Veteran's disability on his employment and daily life. Orthopedic Examination - The examiner should provide a detailed description of any signs and symptoms associated with service-connected chronic tendonitis of the thumbs and degenerative joint disease of the knees, including range of motion before and after repetition. The examiner must document any limitation of motion, including any limitation of motion due to pain and any functional loss pertaining to the left knee, including due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner must provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. Finally, the examiner should provide an assessment of the impact of each of these disabilities on the Veteran's employment and daily life. 4. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. The Veteran is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of her claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any aforementioned examination(s), documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the January 2010 statement of the case. If any benefit sought on appeal remains denied, the appellant and her representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ STEPHANIE L. CAUCUTT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs