Citation Nr: 1324314 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-04 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a ruptured right eardrum, also claimed as a right sided acoustic neuroma. 6. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from July 1971 to May 1981, with additional Reserve service noted in the record. These matters come before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2012 the Veteran testified at a hearing at the RO in Waco Texas before the undersigned. A transcript is of record. At the hearing, additional evidence was submitted with a waiver of initial RO consideration. The Board notes that the Veteran withdrew his appeals for entitlement to service connection for a cervical spine disability, pes planus, a temporomandibular joint disability, a right foot disability, and an earlier effective date for the award of service connection for GERD during the course of his Travel Board hearing. Accordingly, the Board does not have jurisdiction to review those appeals. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). The issues of entitlement to service connection for right knee disability and a ruptured right eardrum, an initial rating in excess of 10 percent for GERD and entitlement to TDIU 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. The Veteran's current lumbar spine disability is etiologically related to active service. 2. The Veteran's current bilateral hearing loss is etiologically related to active service. 3. The Veteran's current tinnitus is etiologically related to active service. CONCLUSIONS OF LAW 1. Thoracolumbar spine disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). 3. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claims for service connection for thoracolumbar spine disability, bilateral hearing loss and tinnitus. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2012) or 38 C.F.R. § 3.159 (2012). Applicable Laws and Regulations Service connection may be granted for 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. Service connection also may be granted for any disease initially diagnosed after service, 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 general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis At the outset, the Board notes that the Veteran was a Weapons System Officer on F-4 aircraft, according to his DD Form 214. Thoracolumbar Spine Disability The Veteran's service treatment records indicate that he was first seen for a strained low back in January 1973. A December 1973 treatment record indicates that he twisted his back during weight lifting and had very limited range of motion secondary to the pain. A July 1978 service treatment record indicates that he had left side back pain while playing paddleball. A November 1978 service treatment record reports severe right side low back pain with muscle spasm. An April 1980 treatment note indicates a right side paraspinous muscle spasm. An April 1980 Form 1042 concluded that the Veteran was medically disqualified from flying due to a back injury. The Veteran testified before the undersigned that in 1977, the F-4 that he was a passenger in made an emergency landing. The Veteran further contends that he hurt his back and right knee when jumping from the aircraft. The Veteran submitted various lay statements indicating that the emergency landing happened consistent with his recollection. The Veteran was afforded a VA examination in July 2009 with an addendum dated in October 2009. The examiner apparently did not have access to all of the Veteran's service treatment records and indicated only that he had treatment in August 1978 and November 1978, further indicating that it would require speculation to connect the Veteran's current back disability to the relatively minor back conditions noted in his service treatment records. A statement dated October 2012 from a private physical therapist indicates that there is a high probability that the Veteran current disability is a manifestation of the 1977 aircraft accident and harsh flight environment of the F-4 cockpit. The private physical therapist also attached literature indicating, generally, that aircrew were more likely to have back problems. A letter from a private physician dated October 2012 indicates that the Veteran has severe spinal stenosis, degenerative osteoarthritis, and degenerative disc disease. The physician indicates that, given the "documented" back injury that occurred in 1977, he believes that the current back disability is related to active service. Adding that it is more probable than not that the Veteran's military flying duties which involved high G-force loading and unloading of the spine aggravated the initial injury. An additional October 2012 letter from a different private physician essentially restates the opinion of the prior October 2012 letter. It is not in dispute that the Veteran a current back disability. Additionally, the undersigned finds the Veteran's testimony to be credible. The Veteran also submitted multiple statement indicating that he had an emergency landing from an aircraft in 1977. The Veteran has also submitted two statements from medical professionals indicating that his current back disability is related to service, considering both the emergency landing as well as the wear and tear on a crew members back from being on aircraft on a regular basis. Thus, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran should be service-connected for his back disability. Hearing Loss and Tinnitus The Veteran contends his hearing loss is due to noise and other environmental exposure which began during active service. With regard to the Veteran's contentions of in-service noise exposure, a review of his occupational history, reveals that while on active service, the Veteran was a Weapon System Officer on F-4 aircraft as indicated above. Because the above information is found to be consistent with the facts and circumstances of the Veteran's service, the Board concedes that the Veteran was exposed to significantly loud noise during active service. 38 U.S.C.A. § 1154(a). Having determined that the Veteran was exposed to such noise, the remaining question for consideration is whether such exposure resulted in a chronic right ear hearing loss disability. In evaluating the claim, the Veteran's service treatment records have been reviewed. Treatment records from September 1974 and October 1974 indicate that the Veteran had a perforation of his right ear drum with hematoma and hemorrhage along his right ear canal. A February 1980 treatment record indicates that the Veteran had right ear pain with an impression of otitis media/externa. A treatment note dated January 1993 (from the Veteran's Reserve duty) indicates the Veteran had chronic AD (right ear) hearing loss since 1976. A Reserve audiological evaluation in January 1993 indicates pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 75 70 85 LEFT 5 5 5 10 20 A Reserve audiological evaluation in December 1997 indicates pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 80 65 80 99 LEFT 5 5 0 15 30 The Veteran was afforded a VA audiological examination in July 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 10 10 15 25 60 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 100 percent in the left ear. The Veteran was additionally afforded a VA ENT (ear, nose and throat) examination in July 2009. The examiner indicated that it was less likely than not that the Veteran's hearing loss and tinnitus was related to active service. His rationale was that the disabilities were instead related to the Veteran's acoustic neuroma which occurred in 1991. Under VA regulations, impaired hearing is considered to be a disability when the auditory threshold 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 C.F.R. § 3.385 (2012). Moreover, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the Board finds that the Veteran has a hearing loss disability by VA standards bilaterally. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this regard, the Board notes that the VA examiner did not account for the Veteran's reported continuity of symptoms. In sum, the evidence of record demonstrates in-service noise and pressure exposure. Moreover, the Veteran has reported a continuity of symptomatology. As hearing loss and tinnitus are capable of lay observation, such reported his constitutes competent evidence in support of the claim. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Veteran's credibility is not in question here. Thus, resolving any doubt in the Veteran's favor, a grant of service connection is warranted for bilateral hearing loss and tinnitus. ORDER Entitlement to service connection for thoracolumbar spine disability is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. REMAND The Veteran contends that an initial rating in excess of 10 percent is warranted for his service-connected GERD. In October 2012, he and his representative stated that an additional VA examination is necessary as his condition has worsened since the previous examination in July 2009. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran's most recent VA examination was conducted in July 2009, and the evidence indicates that his disability has worsened in severity. Therefore, the Veteran should be provided a VA examination to determine the current severity of his GERD. Concerning the Veteran's claim for service connection for his right knee disorder, as indicated above, the Board finds his account of the F-4 incident to be credible. However, there is no medical opinion of record linking the incident to a current right knee disability. There is a letter from a private physician, indicating that an August 2007 surgery was performed, with findings consistent with that of an old ACL tear due to an injury in 1977, further noting that a chronic tear of the ACL can gradually wear out and the meniscus can tear and arthritis set in. Unfortunately, the physician did not have access to the claims file. A February 2001 private treatment note indicates that the Veteran's right knee "gave out" three times the prior week in exercise class and that the Veteran had a prior right ACL injury. A March 2001 note indicates that the Veteran wanted a referral to Dr. R, who had treated him in 1997. Thus, the RO/AMC should attempt to obtain treatment records from Dr. R. Thereafter, the Veteran should be afforded an examination to determine if a nexus exists. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for service connection for a right side ruptured eardrum, also claimed as an acoustic neuroma, an October 2012 statement from a private physician indicates that the Veteran had symptoms related to the tumor for ten years prior to the surgery, including right sided hearing loss, tinnitus, dizziness and numbness in the right ear. This time frame would mean that the symptoms of the later diagnosed disability began while the Veteran was on active service. The Board additionally notes that a July 2009 VA examiner indicated that he could not determine the onset of the acoustic neuroma without resorting to speculation. However, there is no indication in the claims file of medical evidence of residuals of the right side neuroma, with the exception of the now service-connected right ear hearing loss. Thus, the Veteran should be afforded a VA examination to determine if he has any current residuals of his right side acoustic neuroma. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United State Court of Appeals for Veterans Claims (Court) held that "a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation." The Court also stated that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. Thus, on remand, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and, if necessary, an examination should determine if he is currently unemployable due to his service-connected conditions. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide appropriate notice concerning the Veteran's claim for TDIU. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records, to include any medical records pertaining to treatment of the Veteran at the VAMC not already associated with the claims file and records from Dr. R, who treated the Veteran for a knee condition in 1997. 3. If deemed necessary, conduct any other development necessary concerning the Veteran's claim for TDIU to include a determination of whether the Veteran is currently working. 4. Schedule the Veteran for a VA examination to ascertain the current severity of his GERD. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. 5. After any relevant treatment records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disorder. The claims file should be provided to and reviewed by the examiner. The examiner should opine as to whether there is a 50 percent or better probability that the Veteran's right knee disability is related to active service, to include the landing as detailed above. A rationale must be provided for the conclusion reached by the examiner. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of any residuals from his right side ruptured eardrum. The claims file should be provided to and reviewed by the examiner. The examiner should determine if there is any current disability associated with the Veteran's right side ruptured eardrum, excluding the already service-connected right ear hearing loss. 7. Thereafter, the RO should readjudicate the Veteran's claims, to include consideration of his TDIU claim. If such action does not grant the benefits claimed, the RO should provide the Veteran a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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. 2010). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs