Citation Nr: 1327381 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-05 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for allergic rhinitis. 5. Entitlement to service connection for asthma. 6. Entitlement to service connection for a bilateral hip disorder. 7. Entitlement to service connection for a right knee disorder. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for high cholesterol. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had service from June 1981 to August 1984 and from January 1986 to November 2002. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Virtual VA claims file has been reviewed. The issues of entitlement to service connection for bilateral hearing loss disability, allergic rhinitis, asthma, and a right ankle disorder 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. On March 27, 2013, prior to the promulgation of a decision in the appeal of the Veteran's claims of service connection for a bilateral hip disorder, a right knee disorder, hypertension, and high cholesterol, the Board received notification from the Veteran's representative that a withdrawal of these appeals is requested. 2. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal of the claims of service connection for a bilateral hip disorder, a right knee disorder, hypertension, and high cholesterol have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Tinnitus was incurred in peacetime service. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Substantive Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the Veteran's hearing before the undersigned, on March 27, 2013, the Veteran's representative indicated that the Veteran wished to withdraw his appeal of his claims of entitlement to service connection for a bilateral hip disorder, a right knee disorder, hypertension, and high cholesterol. Hence, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed. Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claims for service connection. Thus section 3.303(b) does not apply. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 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). Analysis for Service Connection The Board notes that, the Veteran had active service during a period of war. Likewise, the Veteran's DD Form 214 from both periods of service reflect that his military occupational specialty was radar maintenance technician, display technician for weapons systems, and an engagement planning operator. Service personnel records indicate that the Veteran had sea service. The evidence does not suggest that he engaged in combat with the enemy. Therefore, neither the combat provisions of 38 U.S.C.A. § 1154 (West 2002) nor the rule relating to combat stressors are applicable. Service records reflect that the Veteran was treated for left ear serous otitis/otitis media in May 1983. At his December 2007 VA examination, the Veteran reported a history of periodic tinnitus, which he first experienced approximately 10 years earlier. The VA examiner concluded that the Veteran's tinnitus was not characteristic of that due to noise exposure and without evidence of hearing impairment in service, the evidence did not support a finding of tinnitus related to service. The Veteran testified before the undersigned VLJ in March 2013 that he participated in a noise conservation program during service, but nonetheless was exposed to extremely loud noises while working on helicopters during his period of service wherein he was stationed on an aircraft carrier. The Veteran testified that he experienced tinnitus since his service, and that he reported it at his 2002 separation examination. A May 2013 private audiology report indicates that the Veteran reported a history of intermittent, bilateral tinnitus. The Veteran also reported a history of noise exposure while in the military. The Board finds that the medical evidence of record supports the Veteran's contention that his tinnitus is related causally to his service. The Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service. Moreover, although tinnitus was not shown to have been diagnosed during service or within several years thereafter, bilateral tinnitus was diagnosed at the December 2007 VA audiology examination and at the May 2013 private audiological evaluation. More importantly, this Judge finds the Veteran's report of an in-service onset to be credible. Therefore, the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. The Board acknowledges that the Veteran was previously afforded VA examinations in connection with his claims in December 2007, April 2008, and May 2008. Nonetheless, additional VA examinations are necessary. With regard to the Veteran's claim of entitlement to service connection for bilateral hearing loss, the Board acknowledges that the VA examination in December 2007 showed that the threshold requirements of a hearing loss disability for VA purposes as defined under 38 C.F.R. § 3.385, appear to be met for the right ear. However, the Veteran submitted a May 2013 private audiology report, without a waiver of RO review, which stated that the Veteran had normal hearing bilaterally; this report did not provide an interpretation of the pure tone thresholds found upon audiological testing. See 38 C.F.R. § 20.1304(c) (any pertinent evidence submitted by the appellant or his representative must be referred to the agency of original jurisdiction for initial review, unless this procedural right is waived by the appellant or his representative, or unless the Board determines the benefit sought can be allowed on appeal without such a referral). As the Veteran's in-service noise exposure is conceded, the RO must clarify whether the Veteran does have right ear hearing loss. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). Additionally, the Board observes that the VA examiner, at the December 2007 VA joints examination, found that the Veteran re-injured his right ankle during his service. Nevertheless, the VA examiner did not provide an opinion as to whether his current right ankle instability was due to the in-service re-injury versus the Veteran's preexisting right ankle trauma repair in 1985. As such, this examination is inadequate for adjudicating the Veteran's claim. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2; see 38 C.F.R. § 19.9 (2011). Likewise, the Board finds that the April 2008 and May 2008 VA examination reports do not provide sufficient information to make a decision on the Veteran's claims for allergic rhinitis and asthma. The Board acknowledges the Veteran's testimony before the undersigned that the Veteran's allergies and asthma began during service, and that service treatment records show treatment for related complaints beginning in 1987. The Board also acknowledges the opinion of the May 2008 VA examiner that the Veteran's allergic rhinitis and asthma were not caused by his service, but points out that the VA examiner found that these disorders developed during his active service. Nevertheless, the Board also points out that the Veteran reported a history of hay fever upon entrance into his second period of service, and it is unclear whether the Veteran's allergic rhinitis was aggravated by his period of service, particularly in light of the Veteran's development of asthma during service. In other words, it remains unclear, but relevant, whether the Veteran's allergic rhinitis worsened during service and if so, whether the Veteran's asthma is secondary to his allergic rhinitis or represents a worsening of his allergic rhinitis. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded additional VA examinations regarding his claims for service connection for bilateral hearing loss, a right ankle disorder, allergic rhinitis, and asthma. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, including an audiogram and Maryland CNC speech recognition test, to determine the nature and severity of any current bilateral hearing loss, if any. If the either or both of the Veteran's ears having hearing loss which is considered a disability for VA purposes, the examiner is requested to which addresses whether it is at least as likely as not (a 50 percent or greater probability) that the hearing loss disability is related to service. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to acoustic trauma in service. The examiner should also address the significance, if any, of the fact that the Veteran's tinnitus has been determined to be related to service. The Veteran's claims folder must be provided to the medical provider for review in conjunction with the preparation of the medical opinion. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any right ankle disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any right ankle disorder is related to service. The examiner should specifically answer the question as to whether the Veteran's current right ankle disorder clearly existed prior to service AND if so, whether this disability permanently worsened or otherwise increased in severity (i.e., was aggravated) during service. If the right ankle disability permanently worsened or increased in severity, the examiner should specifically answer the question of whether such increase was beyond its natural progression during his service, taking into consideration his medical history prior to and since his active service. The Veteran's claims folder must be provided to the medical provider for review in conjunction with the preparation of the medical opinion. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any allergic rhinitis and asthma that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any allergic rhinitis and asthma are related to service. If the examiner finds that allergic rhinitis is not caused by his service, the examiner should specifically answer the question as to whether the Veteran's current allergic rhinitis existed prior to service and whether this disability permanently worsened or otherwise increased in severity (i.e., was aggravated), and if so, whether such increase was beyond its natural progression during his service, taking into consideration his medical history prior to and since his active service. If the Veteran's allergic rhinitis is found to have existed prior to service, the VA examiner is requested to opine as to whether the Veteran's in-service asthma represents a manifestation of a worsening of the Veteran's allergic rhinitis or is otherwise causally or etiologically related to the Veteran's service. The Veteran's claims folder must be provided to the medical provider for review in conjunction with the preparation of the medical opinion. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 4. Readjudicate the claims for service connection. If, upon completion of the above action, any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter 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