Citation Nr: 1324310 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-22 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back condition, to include residuals of a T4 compression fracture. 2. Entitlement to service connection for residuals of an injury to the right shoulder. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from October 1954 to October 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran contends that he injured his back and right shoulder during the performance of his duties while stationed at Camp Polk, Louisiana. Specifically, he reports that he was bulldozing trees when one fell on him injuring his back and right shoulder. Almost all of the Veteran's service treatment records were presumably destroyed at the 1973 National Personnel Records Center (NPRC) fire; the service treatment records associated with the claims file are limited to the September 1956 separation examination report and there is no record of the in-service injury. The Veteran provided competent and credible testimony describing the in-service injuries and submitted a competent and credible statement from his brother regarding the Veteran's report of back and shoulder injuries sustained in service. However, while the Veteran is competent to describe symptoms of pain in the right shoulder and back following the in-service injury, the diagnosis of a back or right shoulder disability and the medical causation of any currently diagnosed back or right shoulder disorder is not subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In support of his claims, the Veteran's VA treating physician, Dr. W.W.B., noted in January 2011 that recent x-rays showed a small T4 compression fracture and some radiographic osteopenia, which he opined might have occurred when a portion of a tree trunk fell on the Veteran's back while he was operating a bulldozer in the military approximately 50 years earlier. Dr. W.W.B. indicated that this was possible. Dr. W.W.B.'s statement, standing alone, is too speculative to warrant a grant of service connection. A medical opinion is speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). The Veteran underwent a VA joints examination in January 2011. The examiner diagnosed thoracic spine degenerative disc disease with compression fracture, lumbosacral degenerative disc disease, cervical strain and right shoulder chronic bursitis. The examiner opined that the Veteran's complaints were more likely than not related to aging and osteopenia, as opposed to an incident in service, because there was no objective evidence of an injury in service and the Veteran had a normal separation examination, which is troubling given the loss of the Veteran's service treatment records and the competent and credible account of the Veteran's in-service back injury provided by the Veteran and his brother. Indeed, the examiner's opinion appears to dismiss the Veteran's competent and credible reports of in-service injuries to the back and right shoulder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. A new VA examination of the Veteran's back and right shoulder should be scheduled upon remand. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Next, the Veteran contends that he developed tinnitus due to his exposure to in-service acoustic trauma, or in the alternative, he asserts that his tinnitus developed due to residuals or cold injuries to the ears. The evidence shows that Veteran served as a field artilleryman, which is consistent with his report of in-service noise exposure. Moreover, he provided competent and credible testimony regarding in-service noise exposure without the benefit of hearing protection. While he also endorsed some occupational and recreational noise exposure post-service discharge he reported use of hearing protection. A VA clinical treatment record in April 2011 noted marked noise exposure in service without hearing protection, and after service with hearing protection. The clinician opined that both of these exposures could contribute to the development of tinnitus. By contrast, a VA examiner in January 2011 diagnosed tinnitus and opined that the condition was less likely than not the result of acoustic trauma or cold weather during service. The examiner based the opinion on the Veteran's report of onset of tinnitus 8 to 12 years after service. The Board finds that the VA examiner's opinion is inadequate for rating purposes because the examiner offered no explanation or rationale in support of the finding that the Veteran's tinnitus was not secondary to residuals of a cold injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, following the VA examination, by a rating decision in August 2011, the RO granted service connection for residuals of cold injuries to the left and right ears. Accordingly, the Board finds that the January 2011 VA medical opinion is inadequate and an examination and opinion addressing whether the Veteran's tinnitus had onset in service, or was caused or aggravated by a service-connected disability, to include residuals of cold injuries to the right and left ears, is necessary in order to fairly decide the merits of the Veteran's claim. On remand, the Veteran should be provided with notice concerning how to substantiate his claim for service connection on a secondary basis pursuant to 38 C.F.R. § 3.159. Finally, as the Veteran receives medical care through VA, ongoing relevant treatment records from the VAMC in Little Rock, Arkansas, should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). 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. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. §3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish service connection for tinnitus as secondary to a service-connected disability. 2. Notify the Veteran that he may submit additional lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of his back, right shoulder and tinnitus disabilities and the onset, chronicity and/or relationship between the conditions and service or a service-connected disability. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 3. Obtain, either electronically or physically, all treatment records for treatment received at the VAMC in Little Rock, Arkansas, (John L. McClellan Memorial Veterans Hospital), not already in the claims file. All attempts to obtain these records must be documented in the claims file. 4. After the above development is completed, schedule a VA examination to ascertain the nature, onset and etiology of the Veteran's back and right shoulder complaints. The examiner must review the claims file and the report must note that review. The rationale for all opinions, with citation to relevant medical findings or medical authority, must be provided. Specifically, the VA examiner should address the following: a) Provide a diagnosis for any back disability found to be present, to include residuals of T4 compression fracture. Any necessary tests should be performed. b) Is it at least as likely as not that any current back disability, to include T4 compression fracture, began in or is otherwise related, at least in part, to the Veteran's period of service or became manifest within one year of service discharge in October 1956? c) Provide a diagnosis for any right shoulder condition found to be present. Any necessary tests should be performed. d) Is it at least as likely as not that any current right shoulder disability began in or is otherwise related, at least in part, to the Veteran's period of service or became manifest within one year of service discharge in October 1956? The examiner should elicit from the Veteran a history of symptoms since service. For purposes of the examination, the examiner must acknowledge and discuss the competent lay statements and testimony offered by the Veteran and his brother regarding the in-service injury to the back and right shoulder, and onset and continuity of symptomatology since discharge from service. 5. Schedule a VA examination to ascertain the nature and etiology of the Veteran's tinnitus. The examiner must review the claims file and the report must note that review. The rationale for all opinions, with citation to relevant medical findings or medical authority, must be provided. Specifically, the VA examiner should address the following: a) Is it at least as likely as not that the Veteran's tinnitus began in or is otherwise related, at least in part, to the Veteran's period of service? b) Is it at least as likely as not that the Veteran's tinnitus was caused or aggravated (permanently worsened) by a service-connected disability, to include right or left ear residuals of cold injuries? If the examiner determines that the Veteran's tinnitus was aggravated by the right or left ear disability, the examiner should identify the baseline level of severity of tinnitus, prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. The examiner should elicit from the Veteran a history of symptoms since service. For purposes of the examination, the examiner should consider the Veteran's lay statements regarding the onset and continuity of symptomatology since discharge from service to be competent and credible. 6. Then, readjudicate the claims. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. Then, return the case to the Board. 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).