Citation Nr: 1326828 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-03 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hemorrhoids. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for temporomandibular joint syndrome (TMJ). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had over 20 years of active service when he retired in May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating determination, which, in pertinent part, denied service connection for those disabilities listed on the title page of this decision. The issues of service connection for a low back disorder and TMJ are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. Tinnitus originated during active service. 2. Hemorrhoids originated during active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, hemorrhoids were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal as it relates to the claims of service connection for tinnitus and hemorrhoids, these claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection-General Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The conditions at issue, tinnitus and hemorrhoids, are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection for Tinnitus The Veteran asserts that service connection for tinnitus is warranted as it began in service and has continued to the present day. Service treatment records reveal that in an April 1979 Medical Surveillance Questionnaire the Veteran reported having been exposed to an explosion and high pressure air noise while stationed in Hawaii from January 1976 to February 1979. He also reported having been exposed to loud noise and air guns while working in the torpedo shop on the NWS Yorktown beginning in February 1979. The Veteran was seen with complaints of tinnitus, a sore throat, and pressure in his right ear in May 1983. Following examination, a diagnosis of an upper respiratory infection with ear congestion was rendered. In a December 1989 Medical Surveillance Questionnaire, the Veteran reported having been exposed to noise when performing his duties as an engine room worker while stationed at the Naval Weapons Station in Yorktown, VA, from March 1979 to April 1980. The Veteran also reported having been exposed to noise from May 1980 to October 1989 as an online/fuel room supervisor. The Veteran further indicated that he was exposed to noise when performing his duties aboard the USS Proteus beginning in December 1989. An addendum to the report revealed that the Veteran reported having had no noise exposure from January 1991 to the time of his separation when performing duties as a department career counselor at the Sub Base. In November 1991, the Veteran was seen with complaints of tinnitus. It was noted at that time that he had been prescribed Cipro. It was indicated that the Veteran had been told to stop taking the medication if he experienced tinnitus. An assessment of mild reaction to medication was rendered at that time. At the time of the Veteran's May 1994 service retirement examination, normal findings were reported for the ears. On the May 1994 service retirement report of medical history, the Veteran checked the "no" box when asked if he were having ear, nose, ot throat trouble. VA treatment records associated with the claims folder reveal that at the time of a January 2005 visit the Veteran reported having had ongoing unchanged tinnitus for years. At the time of a March 2006 audiological evaluation, the Veteran reported having had bilateral tinnitus for fifteen years. At the time of a March 2006 outpatient visit, the Veteran again reported having had tinnitus for years. Tinnitus was again noted at the time of an April 2006 visit. In his September 2009 notice of disagreement, the Veteran reported that his ears started ringing after being in an explosion during service in 1978. He reported that although not very noticeable at first it became more pronounced when he was placed on an anti-biotics. He stated that after stopping the medication it diminished in intensity. The Veteran indicated that the doctor told him there was nothing that they could do to alleviate it so he learned to live with it. He stated that the condition had been continuous ever since it started and had increased in intensity. The Veteran indicated that it was now to the point of being quite annoying and it was making it difficult to hear. He stated that when he went to his retirement physical and told the doctor about this condition, the doctor stated that he would have to be placed on a medical hold that would take at least six months. The Veteran indicated that all his travel plans had already been made and that his daughter was already scheduled to start in a new school and the medical hold would have created an extreme hardship. He stated that he told the doctor to forget about it, especially as he had been dealing with the problem for quite awhile. The Veteran indicated that it was only when he could not deal with the problem anymore that he went to the doctor as he had been previously told that there was nothing that they could do anyway. The Veteran stated that the condition started in the military and was documented and that the condition had been continuous and had become more annoying and bothersome as time had gone on. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran's bilateral tinnitus is related to his period of active service. The Veteran experienced acoustic trauma in service, as evidenced by his duties performed in service and the conditions reported by him on his in-service Medical Surveillance Questionnaires. While the Board notes that the Veteran was diagnosed as having tinnitus on two separate occasions during service, these reports were linked to causes other than noise exposure, to include as part and parcel of an upper respiratory infection in the first instance and as a result of taking of Cipro medication in the second instance, with the tinnitus subsiding following the discontinuance of the medication. The Veteran has also reported continuous post-service tinnitus since service, which the Board finds credible. The Veteran is competent to describe his experience of ringing in the ears during and after service. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). The Board has no basis to question the Veteran's credibility. VA treatment records prepared in 2005 and 2006 reveal that during treatment the Veteran reported having had tinnitus since service. Such reported history was prior to his claim for service connection for tinnitus in 2008. This report of medical history by the Veteran is highly probative because it was made for treatment purposes. At the time of a March 2006 VA audiological evaluation, the Veteran also reported having had tinnitus for 15 years, which would place the onset of the tinnitus during the period of active service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Hemorrhoids The Veteran maintains that his hemorrhoid condition had its onset in service and has continued off and on to the present day. A review of the Veteran's service treatment records reveals that he was found to have an internal hemorrhoid at the time of a November 1991 periodic examination. In May 1992, the Veteran was seen with complaints of itching and swelling about the rectal area for two weeks. He reported that he had had bowel movements every other day and that the stools were loose. Physical examination revealed a large hemorrhoid in the external anal area. A diagnosis of external hemorrhoid was rendered. VA treatment records associated with the claims folder reveal that the Veteran was found to have hemorrhoids at the time of a May 2007 colonoscopy. Hemorrhoids were also noted to be present at the time of a May 2008 VA examination for the Veteran's right elbow. In his September 2009 notice of disagreement, the Veteran reported that his first problem with hemorrhoids started during service around 1990 and did not bother him too badly at first. He indicated that when he had his first major flare-up he went to the doctor. He stated that the doctor told him that the only thing that could be done was to have surgery, but he did not recommend that unless it got to the point that he could not take it anymore because it was a painful procedure and did not always fix the problem. The Veteran wrote that he had been able to deal with the condition over the years after service with over-the-counter medication. He indicated that in 1998 he had a problem with a hemorrhoid becoming strangulated, resulting in minor bleeding. The Veteran reported that he went to the doctor at that time and was told to keep using the medication and that if it did not resolve then surgery was the other option. He noted that over the years, the condition had increased in frequency and rarely a week went by that he did not have a minor flare-up and had to use medication to alleviate it. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran's hemorrhoid condition is related to his period of active service. Service treatment records reveal that the Veteran was found to have hemorrhoids on at least two occasions during service. Post-service treatment records also contain objective findings of hemorrhoids. The Veteran has also reported having intermittent hemorrhoid problems since service, which he has treated with over-the-counter medication. The Board has no reason to doubt the Veteran's credibility. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for hemorrhoids have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. Service connection for hemorrhoids is granted. REMAND Service Connection for TMJ As it relates to the claim of service connection for TMJ, the Board notes that the Veteran was seen with complaints of TMJ-like symptoms in service in December 1994. The Veteran was noted to have a bilateral reciprocal click, more on the right. He was advised of jaw mechanics and physical therapy regimens which could be performed. The Veteran was again seen in February 1995 and reported that the joints sounds had decreased since the prior examination due to changes in the sleeping position and masticatory/occlusion habits. The Veteran was pleased with the results but still felt he had nocturnal bruxism. The plan was to make a bite plane and to continue with physical therapy exercises and limitation of masticatory/occlusal functions. Treatment records associated with the claims folder reveal that the Veteran was seen with complaints of TMJ problems in March 2006. He reported having developed TMJ in 1993 while on active duty. X-rays taken of the TM joints appeared to be within normal limits. In his September 2009 notice of disagreement, the Veteran indicated that his TMJ condition started in 1993. He noted that they ground down his teeth which they stated were interfering with his bite pattern. This made some of his teeth sensitive. He further reported that they had instructed him in sleeping patterns and changing his bite pattern to alleviate the TMJ. He noted that these efforts improved the condition and the doctor said that was all that could basically be done, so the Veteran told him it had helped and he let it go at that. The Veteran indicated that this condition had never completely gone away and had become more pronounced over the years. He stated that he had now reached a point where his jaw popped every time he opened it no matter what position he used to open it and it had become quite annoying. Service Connection for a Low Back Disorder As to the Veteran's claim of service connection for a low back disorder, the Board notes that the Veteran was seen with complaints of back problems on several occasions during service. In May 1976, the Veteran was seen with back pain after lifting a heavy object. A diagnosis of low back pain secondary to trauma was rendered. In May 1989, the Veteran was seen with complaints of low back pain for two days. He was noted to have been cleaning his gun when he felt a lot of pressure at the base of his back. The Veteran had not lifted anything heavy or performed any strenuous activities. He had some radiating pain down the back of his left leg at times. Following examination, a diagnosis of questionable lower back sprain was rendered. In June 1991, the Veteran was seen with complaints that his back had been hurting since that morning. Following examination, a diagnosis of muscle strain of the low back was rendered. At the time of the May 1994 service separation examination, normal findings were reported for the spine and lower extremities, and the Veteran checked the "no" box when asked if he had recurrent back pain. Post-service treatment records associated with the claims folder reveal that while the Veteran had complaints of generalized musculoskeletal pain, there was no actual finding and/or a diagnosis of back disorder contained in the records. In his September 2009 notice of disagreement, the Veteran reported that he had had recurrent back pain since 1980 during service which had continued to the present time. He stated that all the doctors did for him was prescribe muscle relaxers/pain killers and recommend exercise and proper lifting techniques, which he did to no avail. He indicated that after several trips to the doctor he just learned to live with it. The Veteran reported that the problems had been continuous and were becoming progressively worse and were sometimes quite troublesome. The Board notes that the Veteran has not been afforded a VA examination as it relates to each claimed disorder throughout the appeal period. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based upon the above, the Veteran should be afforded VA examinations to assist in determining the etiology of any low back or TMJ/jaw disorder, and their relationship, if any, to his period of active service. Furthermore, as this matter is remand status, an attempt should be made to obtain all outstanding records, VA and private, relating to the Veteran's claimed low back and TMJ/jaw disorders from December 2008 to the present. Accordingly, the issues of service connection for TMJ and service connection for a low back disorder are REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any treatment facilities/providers that have provided treatment for low back and/or TMJ/jaw problems. Following receipt of the above names and addresses, along with written authorizations from the Veteran, obtain and associate with the record copies of all treatment records of the Veteran from those facilities/physicians identified by him. If the Veteran identifies any VA treatment facilities, obtain copies of treatment records from these facilities and associate them with the record. 2. Schedule the Veteran for a VA dental examination to assist in determining the nature and etiology of any current TMJ or jaw disorder. All indicated tests and studies should be performed and all findings should be reported in detail. Following examination, the examiner should render the following opinion: Is it as likely as not (50 percent probability or greater) that any current TMJ/jaw disorder is related to the Veteran's period of service? In offering this opinion, please note and discuss the significance of the December 1994 and February 1995 service treatment record entries and findings. Please state the reasons that support any opinion that is rendered. 3. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of any current low back disorder. All indicated tests and studies should be performed and all findings should be reported in detail. Following examination, the examiner should render the following opinion: Is it as likely as not (50 percent probability or greater) that any current low back disorder is related to the Veteran's period of service? In offering this opinion, please note and discuss the significance of the service treatment record entries and findings, including in May 1976, May 1989, and June 1991. Please state the reasons that support any opinion that is rendered. 4. After completion of the above and any development resulting from this remand the AMC/RO may deem appropriate, the AMC/RO should re-adjudicate the issues of service connection for TMJ and service connection for a low back disorder. If any benefit sought on appeal is not granted, the Veteran and the representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs