Citation Nr: 1323278 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 06-05 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, alternatively claimed as anxiety and/or depression. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, spouse and brother ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from November 1968 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2005 RO decision, which denied claims for service connection for status post lumbosacral spine surgery, now with post laminectomy syndrome (claimed as back condition), depression (also claimed as anxiety), bilateral hearing loss, and tinnitus. The Board notes that these issues were remanded by the Board in January 2010 in order to afford the Veteran a hearing before a Veterans Law Judge. In April 2010, a Travel Board hearing was held at the St. Petersburg, Florida RO. A transcript of that proceeding has been associated with the claims folder. The claim was remanded in June 2010. During the course of this appeal, the Veterans Law Judge who conducted the April 2010 became no longer employed at the Board. The Veteran was afforded a second Board hearing before the undersigned in May 2013. A complete transcript is of record. The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by waivers of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The issues of entitlement to service connection for a back disorder, bilateral hearing loss and a psychiatric disorder 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. FINDING OF FACT It is at least as likely as not that the Veteran's tinnitus had its onset during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As to the issue decided below, the Board is granting in full the benefit sought on appeal (service connection). Accordingly, any error committed with respect to either the duty to notify or to assist was harmless and will not be further discussed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Tinnitus There is no mention in the appellant's service medical treatment records of any problems with tinnitus and no complaints of this condition were noted during service. Service records show that the Veteran served in the United States Navy and was assigned to the USS MACDONOUGH which was the support of a Fast Carrier Strike Force in an Anti-air warfare environment. It was noted that ship could also act independently or in conjunction with other units against submarines, surface threats and in the role of Naval gunfire support. The August 1970 report of the service separation examination did not include any mention of tinnitus. A June 2004 VA audiology consult indicates that the Veteran complained of ringing in his right ear that was intermittent and longstanding. Noise exposure was noted as unprotected in the military on the gun range, sonar watches, naval gun fire and a bunk near the sonar transducer. The examiner noted discussing the possible causes of tinnitus with the Veteran. In February 2008 letter, a private examiner stated that after examining the Veteran and his audiogram, he determined that the Veteran has tinnitus due to noise induced trauma while in active military service. The appellant was afforded a VA hearing examination in October 2010. The claims file was reviewed. The Veteran complained of unilateral right ear longstanding tinnitus. He reported that he was exposed to loud noises while in the military including missile launches, small arms fire and ship noises. He also reported no occupational or recreational noise exposure after service. After audiometric testing was conducted, bilateral tinnitus was diagnosed. The examiner opined that it was less likely as not that the tinnitus was caused by or the result of noise exposure in service. The rationale was that the Veteran reports noticing longstanding tinnitus but was not specific with onset details and that there were no complaints of tinnitus while in service. The evidence unfavorable to the claim for service connection consists of the service treatment records which contain no mention of tinnitus; the many years between service and clinical documentation of tinnitus; and the negative October 2010 VA audiology opinion. As to the October 2010 opinion, the Board points out that the absence of in-service evidence of tinnitus is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The United States Court of Appeals for Veterans Claims (Court) has found that an examination is inadequate where the examiner relies on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board finds that the VA medical opinion does not constitute competent medical evidence against the Veteran's claim as the opinion is based in significant part on the absence of in-service evidence of tinnitus. Such a conclusion is contrary to Hensley , supra, Dalton, and Ledford, supra. The appellant has described his exposure to noise in service. He testified at his Board hearings that he first noticed the tinnitus during service. The Board finds the appellant's statements about his noise exposure in service credible/believable, as they are consistent with his military duty assignment aboard the USS MCDONOUGH. Further, a private examiner has offered an opinion associating the current tinnitus with service. Based on the appellant's service record, it may be assumed that he experienced noise trauma associated with his Navy duties. In addition, the appellant is competent to assert the occurrence of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The evidence for and against the claim for service connection for tinnitus is at least in approximate balance. Thus, resolving reasonable doubt in favor of the Veteran, the Board concludes that, based on the appellant's lay statements regarding onset and continuity of tinnitus symptoms and the medical evidence of record, the appellant's tinnitus is as likely the result of his noise exposure in service as it is the result of some other factor or factors. Accordingly, service connection is warranted for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND Reasons for Remand: to obtain adequate nexus opinions and to clarify conflicting evidence. Hearing Loss A hearing impairment is considered to be a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2012). A claimant who seeks to establish service connection for a current hearing disability must show that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303 and 3.304 (2012); Hensley v. Brown, 5 Vet. App. 155 (1993). The record reflects that there is conflicting evidence as to whether the Veteran has hearing loss by VA standards. Private records show in May 2004 a finding of right ear hearing loss which is a disability by VA standards. VA records dated in June 2004 show that an audiogram reflected normal hearing bilaterally by VA standards. A private audiometric report dated in February 2008 reflects bilateral hearing loss by VA standards and the examiner opined that the hearing loss was related to service. On VA examination in October 2010, audiometric testing revealed normal hearing by VA standards, bilaterally. VA's duty to assist includes undertaking reasonable efforts to obtain clarification of unclear evidence, which applies to medical examination reports of all kinds. 38 C.F.R. § 19.9 (2012). The discrepancy in the findings must be reconciled. Low Back Disorder The Veteran contends that his current back disability is causally related to his service. He argues that while serving aboard ship he had to move goods, supplies and other heavy crates and boxes up steep ladders and into the upper deck area where the potato storage was secured. He notes carrying the potato crates of 100 pounds on his shoulders which caused his current back complaints. He has also attributed his current complaints to cold air blowing on his back while sleeping on his stomach in a bunk bed. A review of the Veteran's service treatment records reveals that the Veteran complained of pain in both kidney areas in September 1969. In October 1969, he complained of intermittent pains in his back. In a March 1970 service treatment record, the Veteran complained of pain in his chest over his heart which extends through to his back. In April 1970, the Veteran again complained of back pain. The Board notes that the claims file contains a December 2000 private medical record from West Hernando Diagnostic & M.R. Center. In this record, the Veteran was diagnosed with severe central canal stenosis at L4-L5 secondary to congenitally short pedicles, extensive posterior facet osteoarthropathy, grade I anterior spondylolisthesis, and mild circumferential disc bulge; mild diffuse congenital spinal stenosis noted throughout the lumbar spine secondary to congenitally short pedicles; and degenerative disc desiccation and mild disc space narrowing noted at L4-L5 and L3-L4, with no focal disc protrusion noted throughout the lumbar spine. There is a February 2008 private statement from a doctor of chiropractic. This doctor noted that, after reviewing the Veteran's history of low back pain which originated in 1969 while serving on active duty, it seems reasonable to assume that the Veteran's chronic back injury is directly related to the repetitive lifting in excess of 100 pounds he was required to do during underway replenishments and pier side stowing of stores and weapons. This doctor noted that he would not have been predisposed to significant injury if his work duties were matched to his small stature and light body weight at that time. If the Veteran had been properly evaluated though x-ray examination, it would have been concluded that these were inappropriate duties based on his small size. The Veteran was examined by VA in December 2010. He reported the onset of pain in 1969 which he attributed to cold air blowing on his back while sleeping on his stomach in a bunk bed. He also reported being involved in lifting and loading aboard ship. He was examined. The diagnoses were: status post lumbar laminectomy of L4, partial superior laminectomy of L5 due to degenerative disc disease/degenerative joint disease of the lumbar spine; and L4-5 radiculopathy of the right side secondary to the first diagnosis. The examiner opined that it is less likely as not that the current low back disorder is related to the Veteran's service and is at least as likely as not due to expected aging process. The examiner stated that he was unable to uncover any chronic back disorder related to the inservice activities. It was noted that X-rays failed to show any congenital spine disability, and that degenerative changes occur when cartilage in the joints/bones wears down over time and usually gradually worsens with aging. In a July 2010 addendum opinion the February 2008 private examiner stated that in his opinion it is more likely than not that the Veteran's chronic low back condition originated with a military service injury in 1969. It was stated that his congenital lumbar issues may not have been as much a contributing factor as the fact that he was of very small stature lifting very heavy weight for even a larger man. It was stated that after reviewing his military records and current medical record, he would conclude that it is more likely than not that the heavy lifting requirements of his specific job duties which were not correctly matched with his small stature is the fundamental cause of his chronic low back condition. Here the record is conflicting as to whether the Veteran has a congenital back disorder. As noted, VA's duty to assist includes undertaking reasonable efforts to obtain clarification of unclear evidence, which applies to medical examination reports of all kinds. 38 C.F.R. § 19.9 (2012). The discrepancy in the findings must be reconciled. Thus a remand is required for a VA examiner to determine whether any back condition was congenital in nature, was aggravated by service, or was directly caused by service. A Psychiatric Disorder The Veteran has asserted that his current psychiatric disorder began during his active duty service. Specifically, the Veteran asserted that he developed anxiety during service due to the stress of being on a ship that needed serious repair. He reported that he had a constant fear of being trapped below deck and not being able to escape if the ship were to capsize. A review of the Veteran's service treatment records reveals that the Veteran reported on a November 1968 Report of Medical History that he experienced depression or excessive worry. In an October 1969 service treatment record, the Veteran was noted as being in a nervous state and was diagnosed with acute anxiety reaction. In a March 1970 service treatment record, the Veteran was noted as probably having a nervous condition. On a December 1970 Report of Medical History, the Veteran reported that he experienced depression or excessive worry and nervous trouble. In a November 1971 record, the Veteran was noted as having anxiety, which was most probably the cause for chest pain, stomach trouble, and dizziness. With regard to a current disability, the Veteran underwent a VA examination in October 2004. He was diagnosed with depressive disorder, not otherwise specified, and anxiety disorder, not otherwise specified. An opinion was not provided regarding the etiology of these disabilities. The claims file also contains a January 2008 private psychiatric assessment. After interviewing the Veteran and noting his assertions, this physician noted that the Veteran had a diagnosis of panic disorder, as well as major depression, recurrent, and generalized anxiety disorder. He concluded by saying that, based on this history, it is his opinion that the Veteran's anxiety and depressive disorder is service connected. On VA examination in December 2010, the examiner diagnosed mood disorder with depression and anxiety with psychotic features. It was opined that the disorder was less likely as not caused by or a result of service. The examiner noted that the Veteran had a complex history and that the findings were complicated by the fact that the Veteran had been taking Xanax and Valium for many years. The examiner went on to state that future assessment of the Veteran after a period of abstinence from medication may be warranted to clarify the etiology of his current symptoms. The Board finds that the December 2010 VA opinion is inadequate. The Court has held that a medical opinion that is equivocal, indefinite or based on speculation, without supporting clinical data does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999). An opinion based on an inaccurate (or unsubstantiated) factual premise has limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). see also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). As this opinion is conditional and indefinite the Board finds it inadequate and a remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact the private examiners who have conducted examinations of the Veteran for his hearing loss as noted above. Request that they identify which speech discrimination test was utilized during the examinations, as well as to provide the pure tone threshold findings in numerical form. If the examiners are unavailable or do not respond, the RO/AMC should make a notation of this fact in the record. 3. After obtaining all available, relevant treatment records, schedule the Veteran for a VA spine examination with a qualified orthopedic physician who has not previously examined him. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner should be informed in connection with the examination that clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). a) The examiner must opine as to whether the evidence of record clearly and unmistakably establishes that there is a congenital disorder of the spine present. The examiner must specifically address radiographic evidence in the file as well as the conflicting findings by VA and private examiners regarding congenital defects of the spine. b) The examiner must opine as to whether the evidence of record clearly and unmistakably establishes that there was an acquired back disability present prior to the Veteran's entry into active duty service in 1968. c) If a pre-existing condition (either congenital or acquired) is identified, the examiner must opine as to whether the evidence of records clearly and unmistakably establishes that the pre-existing condition was not aggravated by service. Aggravation means worsened beyond the natural progression. d) If no pre-existing condition is found under the appropriate "clear and unmistakable" legal standard, the examiner must opine whether it is at least as likely as not any currently diagnosed back disability was caused by service. The examiner must specifically address the documented in-service treatment and complaints of the Veteran, and must consider the Veteran's competent lay reports of strains on his back. The role of established post-service treatment should be specifically addressed. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The RO should also arrange for an evaluation of the Veteran (to include audiometric studies) by an otologist or audiologist to determine conclusively (reconciling the conflicting reports noted above) whether or not he has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so the likely etiology for the hearing loss disability (specifically whether it is related to his service). The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Based on a review of the record and examination/interview of the Veteran, the examiner must offer opinions that respond to the following: (a) Does the Veteran have a hearing loss disability as defined in 38 C.F.R. § 3.385. The explanation of rationale for the opinion should (to the extent possible) reconcile the conflicting findings in that regard made in the record. (b) If a hearing loss disability is found, the examiner should further opine whether such disability is at least as likely as not (a 50 % or better probability) related to the Veteran's acknowledged exposure to noise trauma in service. The examiner must explain the rationale for the opinion in detail; if the opinion is to the effect that the hearing loss is unrelated to service, the explanation should identify other (considered more likely) possible etiologies for the hearing loss. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his psychiatric complaints. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder is related to the Veteran's service. The examiner must specifically address the documented in-service treatment and complaints of the Veteran, and must consider the Veteran's competent lay statements. The role of established post-service treatment should be specifically addressed. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the development requested has been completed, the RO must review the examination reports to ensure complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs