Citation Nr: 1325601 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-37 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for tingling and numbness of the bilateral upper extremities, to include as secondary to service-connected diabetes. 4. Entitlement to service connection for tingling and numbness of the bilateral lower extremities, to include as secondary to service-connected diabetes. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously brought before the Board in August 2012 at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. The issues of entitlement to service connection for numbness and tingling of the bilateral upper and lower extremities 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. Tinnitus is not shown to be due to a disease or injury in-service or to any incident of military service. 2. The Veteran's PTSD is related to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for PTSD, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). With regard to the claim for tinnitus, the notice requirements were met in this case by a letter sent to the Veteran in February 2007. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in December 2012 for his tinnitus. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, 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. Layno v. Brown, 6 Vet. App. 465 (1994). 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) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, 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 also 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'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus The Board has reviewed the Veteran's service treatment records and observes that he was given an examination at entrance to service in August 1963. He reported no ear trouble and on examination tinnitus was not diagnosed. The Veteran did not complain of tinnitus in his service treatment records. At his separation examination in August 1966 the Veteran again denied ear trouble and tinnitus was not diagnosed. The Veteran's failure to report tinnitus at any time during active duty, and his denial of ear problems at separation from service in August 1966 weighs against his claim that this disorder began in service. The law also provides that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The first post service reference to tinnitus comes from an October 2007 VA treatment record where the Veteran reported occasional tinnitus. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claim for service connection. At his December 2012 VA examination the Veteran stated that he had constant, bilateral tinnitus which began in approximately 1987, over 20 years after separation from service. He denied any triggering event associated with the onset. The examiner concluded that it was less likely than not that any current tinnitus was related to noise exposure from service. Her rationale was that the Veteran did not complain of tinnitus in service and specifically checked that he was not having ear trouble at his separation examination in August 1968. She also noted the Veteran reported an onset of tinnitus in 1987, which was 20 years after he separated. In addition to the lack of evidence noting tinnitus in service, the evidence includes statements from the Veteran asserting that his tinnitus is a result of exposure to guns and artillery while working in Vietnam without ear protection. See e.g., August 2009 VA Form 9. The Board finds that the Veteran is competent to report that he was exposed to loud noises in service. The Board also finds that the Veteran is credible in reporting he was exposed to loud noises in service. However, the Veteran has been inconsistent in his reports of tinnitus and when it began. Although the Veteran filed a claim for service connection alleging the tinnitus was a result of noise exposure in Vietnam, at his audiological examination he reported that tinnitus did not begin until 1987, over 20 years after separation from service. The inconsistencies weigh against the Veteran's contention that his tinnitus is related to service. Accordingly, the Board finds the Veteran's statements lack credibility and are assigned little probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The weight of the competent evidence does not attribute tinnitus to active duty. The Board has also considered the December 2012 VA examiner's opinion that the Veteran's tinnitus is less likely than not related to service. The examiner reviewed the claims file, examined the Veteran, and offered an opinion and rationale that his tinnitus was not related to service. The examiner compared auditory thresholds from entrance to service against those at separation from service and found no significant shifts. The examiner also discussed that the Veteran himself stated his tinnitus began in 1987. Accordingly, the Board assigns the examiner's opinion high probative value and weight. The Board has considered the Veteran's statements that his tinnitus began in service as a result of exposure to loud noises. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of determining the etiology of tinnitus, this falls outside the realm of common knowledge of a lay person. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the Veteran has offered only conclusory statements regarding the relationship between his in service incident and current tinnitus. A VA examiner has reviewed service and post-service treatment records, considered reported history, examined the Veteran, and determined that tinnitus is not related to service. Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Psychiatric Disorder The Veteran contends that he has PTSD as a result of the incidents he experienced while in-service to include small arms and mortar fire, seeing body bags, and reading about his friends who were killed. See December 2012 VA examination report. The Veteran served in Vietnam from September 1965 to August 1966. In a September 2001 private psychiatric assessment the Veteran was diagnosed with PTSD secondary to his experiences in Vietnam. At a July 2002 private psychiatric examination the Veteran endorsed flashbacks, irritability, crying, and nightmares. He was diagnosed with PTSD to major depression. In a July 2007 VA treatment record the Veteran had a positive PTSD screen and was diagnosed with PTSD. At his July 2009 VA examination the Veteran did not meet the criteria for a diagnosis of PTSD. At the Veteran's December 2012 VA examination the examiner found two of the Veteran's stressors were adequate to support a diagnosis of PTSD and were related to the Veteran's fear of hostile military or terrorist activity. Ultimately the examiner stated the Veteran did not meet all the criteria for a diagnosis of PTSD. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). Although the July 2009 and December 2012 examiners determined that the Veteran did not meet the criteria for PTSD, the December 2012 examiner did find that the Veteran's stressors were adequate to support a diagnosis of PTSD and were related to a fear of hostile military or terrorist activity, which are required elements under the amended regulations. 38 C.F.R. § 3.304(f). The Veteran was also diagnosed with PTSD in July 2007 by a VA examiner and in September 2001 and July 2002 by private examiners. At the very least, the Board finds the evidence is in relative equipoise. As there is corroborative evidence that the Veteran has PTSD and there is a competent medical opinion linking PTSD to service, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of service connection for PTSD is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a psychiatric disorder is granted. REMAND The Veteran was afforded a VA examination in December 2012 for the numbness and tingling in his bilateral upper and lower extremities. The examiner's opinion is unclear as to whether the Veteran has a bilateral lower extremity disability. The Veteran's EMG was abnormal, but negative for neuropathy. The examiner also did not offer an opinion as to whether the Veteran's service-connected diabetes aggravated his carpal tunnel syndrome or a disability of the bilateral lower extremities. An addendum opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the December 2012 peripheral nerves examiner review the claims file and offer an addendum opinion. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion. 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 printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should offer the following opinions: a) Is it at least as likely as not that the Veteran's carpal tunnel syndrome was caused OR chronically worsened (aggravated) by his service-connected diabetes? b) Does the Veteran have a nerve disorder of the bilateral lower extremities? The examiner should note the abnormal EMG findings from July 2008. c) Is it at least as likely as not that the Veteran's bilateral lower extremity nerve disorder, if any: i) Is related to service? AND ii) Was caused OR chronically worsened (aggravated) by his service-connected diabetes? A detailed rationale should be provided for all opinions. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why such an opinion cannot be rendered. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 2. After the above has been completed, the AOJ 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 must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs