Citation Nr: 1323870 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-23 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for degenerative disc disease at C3-C4 of the cervical spine. 3. Entitlement to service connection for multilevel degenerative disc disease of the lumbosacral spine. 4. Entitlement to service connection for a crush injury of the third finger of the right hand. 5. Entitlement to service connection for a crush injury of the fourth finger of the right hand. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs' (VA) Regional Offices (RO) in Houston, Texas. In June 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. At the hearing, the Veteran submitted additional medical evidence, accompanied by a waiver of initial RO review of the evidence. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. In a June 2013 letter, the Veteran raised the issue of entitlement to service connection for diabetes mellitus. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On the record at the June 2013 Board hearing and in an accompanying June 2013 statement, prior to the promulgation of a decision in the appeal, the Board was notified by the Veteran and his representative that they wanted to withdraw the appeals for the issues of entitlement to service connection for crush injuries of the third and fourth fingers of the right hand. 2. The Veteran has degenerative disc disease at C3-C4 of the cervical spine that is related to service. 3. The Veteran has multilevel degenerative disc disease of the lumbosacral spine that is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for the issues of entitlement to service connection for crush injuries of the third and fourth fingers of the right hand by the Veteran and his authorized representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Degenerative disc disease at C3-C4 of the cervical spine was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. Multilevel degenerative disc disease of the lumbosacral spine was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2012). In the decision below, the Board has granted the Veteran's claims for service connection for disorders of the cervical spine and lumbar spine. The Board has also dismissed the claims involving crush injuries to the third and fourth fingers of the right hand at the Veteran's request. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Crush Injuries of the Third and Fourth Fingers of the Right Hand The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran and his representative indicated at the June 2013 hearing and in a June 2013 statement that they were withdrawing the appeals for the issues of entitlement to service connection for crush injuries of the third and fourth fingers of the Veteran's right hand. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for those issues, and they are dismissed. Cervical Spine & Lumbar Spine Disorders Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") The Veteran in this case has been diagnosed with degenerative disc disease at C3-C4 of the cervical spine, and multilevel moderate to severe degenerative disc disease of the lumbosacral spine documented, for example, on VA examination in May 2011. Thus, the question is whether his current disabilities are related to active service or events therein. See 38 C.F.R. § 3.303. Initially, the Board notes that as the claimed injuries in this case were not incurred during combat, 38 U.S.C.A. § 1154(b) does not apply. As for the in-service incurrence of the cervical spine condition, the Veteran testified that while on active duty, he was off-loading loose ammunition in buckets. The process involved attaching the bucket to a rope, and lowering the rope from person to person. The bucket weighed 16-20 pounds. The Veteran contends he was injured when a bucket was dropped and struck him directly in the back of the neck and head as he was bent over. He testified that he lost consciousness, and awoke in sick bay with a horrible headache and ringing in the ears. The Veteran testified that he has suffered from neck pain and headaches since this event. Hearing Transcript, pp. 2-3. His spouse, to whom he has been married since 1969, has submitted statements supporting that the Veteran has been going to chiropractors for his neck and back for as long as she has known him. Service treatment records confirm this accident as contended. A treatment record from April 1953 shows that due to the negligence of others, at 9:00 that morning, a bucket was dropped 5 decks and struck the Veteran on the back of the head. He lost consciousness. He was brought to sick bay in a stretcher. He was considerably agitated on arrival, but was not confused. On examination, his scalp over the occipital area was boggy and tender. His examination otherwise appeared normal. He was prescribed bed rest with head privileges, a regular diet, and medication. He was discharged with a moderate headache. As for his lumbar spine condition, the Veteran testified that in January 1956, he received an electrical shock from a resting gear cable, and suffered from a backache ever since. He submitted medical literature to the effect that an electrical shock can cause muscular contraction and pain, and that this is what happened in his case. He testified that after the shock, he was dizzy and his back hurt. He applied topical heat ointment to his back from his locker. He further testified that he received various other back injuries subsequent to the shocking incident. While on the aircraft flight deck, he was blown 30-40 feet off the flight deck by a jet blast onto a catwalk. He testified that during a call to General Quarters, he was pushed from behind and fell down in a passageway. He testified he was stepped on by the men behind him. He also testified that he hurt his back during an instance in which he had to dive out of the way into a wall on the flight deck. Hearing Transcript, pp. 5-8. Service treatment records show that in January 1956, the Veteran was saving an arresting gear cable when he received an electrical shock. It was unknown where the current originated. The Veteran was admitted for observation. Shortly thereafter, in February 1956 and March 1956, service treatment records show that the Veteran reported having a backache since the electrical shock. He was treated with heat and massage. On separation from service, the examining physician noted a history of backaches with medical treatment. The Board finds that this evidence clearly supports the in-service incurrence of a neck and back injury, as contended by the Veteran. In addition to the evidence above, the Board further finds the Veteran and his wife are both credible and competent to report his symptoms of neck and back pain from the time of the in-service accident. The Court of Appeals for Veterans Claims has held that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is additionally persuaded by the positive nexus evidence of record. At the June 2013 hearing, the Veteran submitted an April 2013 private medical report from his treating chiropractor, J. E. In the report, J. E. stated that while he could not opine with complete certainty that the Veteran's current neck and back disabilities were directly related to his in-service injuries, it is reasonable to assume that they led to his conditions. As rationale, he stated that injuries of this nature cause significant trauma to the spine, which leads to an earlier onset of degenerative changes. As for the back, there is no opinion to the contrary of the April 2013 opinion. The Veteran underwent a VA examination in May 2011. The examiner noted the in-service electrical shock that occurred in January 1956, as well as the complaints of back pain in February 1956, March 1956, and on separation. The examiner found that there was "no further evidence of back pain from 1956 and beyond." As such, she concluded, "whether or not the Veteran had any degenerative disc disease of the lumbar spine while in the service cannot be resolved without resorting to mere speculation." As for the neck, the May 2011 VA examiner noted the accident that occurred in service involving the bucket, and the Veteran's complaints of headaches following the accident. She stated, "there is no continued evidence of neck pain due to the accident. He was unable to obtain any of the evidence over the years of seeing a chiropractor for his neck pain. Therefore, based on the current evidence, it is this examiner's opinion that his degenerative disc disease to the cervical spine is less than likely related to the accident in the service." An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Id. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). On review of all of the evidence, the Board finds that at minimum, the evidence is in equipoise as to whether the Veteran's neck and back disabilities are related to service. Initially, the opinion of the May 2011 VA examiner is of diminished probative value because she found there was no evidence of neck or back problems since service. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate, such as the Veteran's self-reported and inaccurate history). Contrary to the May 2011 examiner's findings at the time, the claims folder now contains post-service medical evidence that documents the Veteran's complaints and treatment in this regard. While this evidence is from recent years, at the June 2013 hearing the Veteran's representative indicated that they were unable to obtain older records as the records were destroyed after seven years. Hearing Transcript, p. 4. Additionally, the Veteran and his wife have submitted statements indicating that he has suffered from neck and back problems since discharge. Moreover, as it pertains to the Veteran's lumbar spine disorder, the opinion of the May 2011 VA examiner is not a negative nexus opinion, it is a non-opinion, leaving the record devoid of nexus evidence against the claim. In this vein, it is unclear why the examiner arrived to a negative conclusion on the neck claim and a non-conclusion on the back claim, when applying the same rationale to both claims. She determined that the Veteran's neck disability was less likely than not related to service based on an absence of post-service evidence of neck problems, but due to the absence of post-service evidence of back problems, she could not resolve the issue for the back claim without speculation. This further diminishes the probative value of the opinion. By contrast, the Board finds that the April 2013 opinion of J. E. is sufficient for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The report reflects that J. E. is a specialist in the treatment of problems of the neck and spine. His opinion was founded upon an accurate medical history and a physical examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that Board may not disregard a medical nexus opinion solely on the rationale that the medical opinion was based on an "uncorroborated" history given by the Veteran of in-service acoustic trauma where the history has not been found by the Board to be inaccurate; the case involved a Korean War Veteran and 1973 fire destroyed records); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the Board cannot determine that a Veteran's statements lack credibility merely based on a lack of such documentation in the service treatment records). The Board here finds that the Veteran's allegations are fully credible. While further explanation from J. E. for his opinion may have been helpful, and a remand for a further medical opinion could be accomplished, the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an Veteran's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Given the facts noted above, and with resolution of any doubt in the appellant's favor, the Board concludes that the criteria for service connection for degenerative disc disease at C3-C4 of the cervical spine, and multilevel degenerative disc disease of the lumbosacral spine, are met. ORDER The issue of entitlement to service connection for a crush injury of the third finger of the right hand is dismissed. The issue of entitlement to service connection for a crush injury of the fourth finger of the right hand is dismissed. Service connection for degenerative disc disease at C3-C4 of the cervical spine is granted. Service connection for multilevel degenerative disc disease of the lumbosacral spine is granted. REMAND The Board finds that further development is necessary before the claim remaining on appeal can be properly adjudicated. An additional VA medical opinion is necessary to adjudicate the claim. In compensation claims, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Here, the Veteran has been diagnosed with tinnitus, documented, for example, on VA examination in May 2011. As for the in-service incurrence of the disability, the Veteran contends his tinnitus arose following being struck with an ammunition bucket in the back of the head. Hearing Transcript, p. 5. This event is corroborated by service treatment records. Additionally, the RO has conceded that the Veteran was exposed to excessive noise in service during the performance of his duties as an aviation boatswains mate. See August 2011 Rating Decision. Further, the Veteran is competent to describe tinnitus in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). On VA examination in May 2011, it appears that the Veteran reported to the examiner that his tinnitus arose 20-25 years prior. He specifically denied experiencing tinnitus in the Navy. Based on this the examiner concluded, "given reported onset of tinnitus approximately 30 years after discharge from the Navy it is less than likely that tinnitus is the result of military noise exposure." At the June 2013 hearing, the Veteran testified that experienced ringing in the ears following the bucket incident. He specifically stated, "I had ringing of the ears the day it happened." Hearing Transcript, p. 5. While the May 2011 examiner addressed the relationship between noise exposure and tinnitus, the Board finds that an opinion should be obtained to determine any relationship between tinnitus and the in-service accident involving the ammunition bucket. Further, the Veteran's contentions that he did experience tinnitus while in service, rather than 20-25 years later, should be considered. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination to address the nature and likely etiology of his tinnitus. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from tinnitus due to an injury or other event or incident of his period of active service. In so doing, the examiner should discuss the April 1953 service treatment record documenting an accident in which the Veteran was struck in the head with an ammunition bucket, and his contentions that he experienced ringing in the ears with this incident. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Further, the examiner should note that VA has conceded his exposure to excessive noise in service based on his military occupational specialty. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the 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). 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. All applicable laws and regulations, and all evidence received, to include in the electronic claims file, should be considered. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs