Citation Nr: 1327569	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  13-00 910	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota

THE ISSUES

1.  Entitlement to service connection for tinnitus.  

2.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).  

3.  Entitlement to service connection for residuals of a cold injury of the left upper extremity.  

4.  Entitlement to service connection for residuals of a cold injury of the right upper extremity.  

REPRESENTATION


Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from November 1954 to November 1956.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

Since, however, the claim of entitlement to service connection for COPD requires further development before being decided on appeal, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding the remaining claims of entitlement to service connection for tinnitus and cold weather injuries of the left and right upper extremities.


FINDINGS OF FACT

1.  It is just as likely as not the Veteran's tinnitus, like his bilateral sensorineural hearing loss, is the result of noise exposure and consequent injury (acoustic trauma) during his military service.

2.  But the weight of the evidence is against finding he has any residuals of cold injuries of his upper extremities because of his service.



CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in his favor, the Veteran's tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  It is not shown, however, he has residuals of cold injuries of his upper extremities because of disease or injury incurred in or aggravated by his service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified in part at 38 C.F.R. § 3.159.

Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that to the extent possible the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim.  Pelegrini at 119-20.  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, in July 2012, prior to initially adjudicating his claims in the October 2012 rating decision at issue, so in the preferred sequence, the Veteran was provided notice of the VCAA.  The letter indicated the types of information and evidence necessary to substantiate the claims and the division of responsibility between him and VA in obtaining this supporting evidence, including lay evidence and both private and VA medical treatment records.  He also received notice in July 2012 concerning the "downstream" disability rating and effective date elements of his claims.  Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  He therefore has received all required notice concerning his claims.


And as concerning the duty to assist him with his claims, all relevant evidence necessary for an equitable resolution of them has been identified and obtained, to the extent possible.  The evidence of record includes his service treatment records (STRs), as well as private medical records, VA medical records, the reports of a VA compensation examination, including the medical nexus opinions obtained, and statements from him and his representative.

The Veteran's service personnel records (SPRs) are unavailable.  After a search at the National Personnel Records Center (NPRC) for them, the NPRC indicated in August 2012 that these other records were fire-related.  So the only additional record the NPRC could provide was a copy of an alternate source document, namely, the Veteran's Report of Separation from Service (DD Form 214).

The Court has explained that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources."  Washington v. Nicholson, 19 Vet. App. 362-369-71 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  See also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).   To this end, in an August 2012 letter the RO informed the Veteran that some of the records concerning his service were fire-related, and resultantly requested that he provide any relevant documents in his personal possession, including any available copies of SPRs.  The RO also issued a formal memorandum in August 2012 declaring that the SPRs were unavailable and discussing the efforts that were made to try and obtain them and alternative records.  In a September 2012 statement, the Veteran acknowledged receiving the August 2012 letter and had sent NA Forms 13075 and 13055 to the NARA.  He further indicated he would attach copies of those forms for VA to review.  To date, though, no copies of these forms and no additional SPRs have been received.

When, as here, at least a portion of the Veteran's SPRs are unavailable or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).  But having said that, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing records, if available for consideration, necessarily would support the claims.  That is to say, missing SPRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing SPRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

To try and further assist him in developing his claim for tinnitus, the Veteran had an August 2012 VA audiology examination.  The report of the evaluation reflects that the examiner reviewed the Veteran's pertinent medical history, documented his then current medical condition, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record, and with supporting rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Consequently, the Board concludes that the medical examination is adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).  Moreover, given the favorable decision regarding this claim, another VA audiology examination in any event would be unnecessary. 

On the other hand, the Veteran has not been provided a VA compensation examination concerning his claims for residuals of cold injuries of his left and right upper extremities.  But the Board finds that an examination and medical opinion are not needed to fairly decide these claims.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  As the service and post-service medical records provide no indication of these claimed disabilities or association of them with his military service the Board has no grounds for obtaining a VA examination and medical nexus opinion.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

According to the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a medical examination when there is:  (1) competent evidence of current disability or persistent or recurrent symptoms of disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence in the file for VA to make a decision on the claim.  Here, though, simply stated, the standards of McLendon are not met - at least not as concerning these claims for cold weather injuries of the upper extremities.

The only post-service evidence, signs or symptoms of cold injury involving the upper extremities or residuals thereof consists entirely of the Veteran's unsubstantiated lay statements claiming such injuries.  The medical evidence in the file, including the private and VA medical records, does not reflect any relevant complaints, treatment or findings related to cold injuries or associated residuals involving his upper extremities, indeed, not at any time since the filing of these claims.  VA is not obligated to provide an examination in this circumstance merely as a matter of course.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  If there was this requirement, this would circumvent the craftily tailored language of the statutes and regulations governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception.

Given particularly that the Veteran apparently has not required, must less received, any actual treatment for residuals of cold injury of his left or right upper extremity, and the fact that the record on appeal does not indicate any relevant diagnosis, either, the Board does not find a VA obligation to have him examined concerning these claims.

He has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  There is no indication there exists any additional evidence that has a bearing on the claims being decided that has not been obtained.  He and his representative have been accorded ample opportunity to present evidence and argument in support of the claims.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2012).

Governing Statutes, Regulations and Precedent Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  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 the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - 
the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

That notwithstanding, according to VA regulation, sensorineural hearing loss, so this specific type of hearing loss, is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system".  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  
M21-1MR III.iv.4.B.12.a.

Tinnitus and residuals of cold injury, however, are not the type of conditions that fall within the purview of 38 C.F.R. § 3.309(a).

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must 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 the evidence also is credible).  Only if evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also 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").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Analysis

Tinnitus

The Veteran contends that his tinnitus was caused by exposure to loud noise levels during his military service, without the benefit of protection for his ears, and that his symptoms have persisted since his separation from service.  See his July 2012 claim application, on VA Form 21-526, and October 2012 notice of disagreement (NOD).  He says he served as a heavy equipment operator in the U.S. Army, so that was primarily the source of his noise exposure, that is, aside from the exposure to weapons fire, etc., which all soldiers are subjected to.

His STRs are unremarkable for any indication of evaluation or treatment for acoustic trauma or related injury.  He also did not have any relevant complaints.

His DD Form 214, however, confirms that his military occupational specialty (MOS) was construction machine operator, thereby suggesting his duties and responsibilities in service were consistent with the type of noise exposure he alleges.  Therefore, the Board concludes he was exposed to high levels of noise during his service.  See 38 U.S.C.A. § 1154 (requiring that VA give due consideration to the places, types and circumstances of service).

During his August 2012 VA audiology examination, he added that he was qualified in the military to use a rifle, and that no hearing protection was provided in that environment, either.  He also reiterated that his MOS involved working with heavy equipment and machinery.  His non-military noise exposure, in comparison, included working as an electric crane operator for 15 years, and he denied using hearing protection when working with household power equipment in his civilian life.  But he reported experiencing recurrent tinnitus in both ears, which he said he had first noticed 20 years earlier while at his civilian job.  The VA examiner resultantly opined that the Veteran's tinnitus was less likely than not a symptom associated with his hearing loss and that it was less likely than not that his tinnitus was caused by or a result of military noise exposure.  In his rationale for both opinions, the examiner explained that the Veteran had reported first noticing tinnitus 20 years prior to that evaluation, while at his civilian job rather than while in the military.  That, then, according to the VA examiner, was reason for disassociating any current tinnitus from the Veteran's service and, in particular, any noise exposure he had experienced during his service.

But this VA compensation examiner's unfavorable opinion notwithstanding, the Board finds there is sufficient other evidence in the file to place the evidence as a whole into relative equipoise, so approximately evenly balanced for and against the claim, in turn allowing the Board to grant the claim with resolution of all reasonable doubt in the Veteran's favor.  38 C.F.R. § 3.102.  An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; rather, there need only be this approximate balance of evidence for and against the claim for the Veteran to prevail.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


As already pointed out, the Veteran's MOS in service supports his reports of exposure to excessive noise in that capacity.  Moreover, tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation").  So even had the August 2012 VA compensation examiner not confirmed this diagnosis, the Veteran would be able to even though a layman.

But also as a layman, he is competent to report on factual matters of which he has firsthand knowledge, e.g., exposure to excessive noise during his service and to having experienced symptoms of tinnitus ever since.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  His statements concerning this also are credible, so ultimately probative, especially since generally consistent with the other evidence in the file - including especially his DD Form 214 indicating his MOS was construction machine operator as he alleges.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).  See, too, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).

The apparent sole reason for disassociating the Veteran's tinnitus from his sensorineural hearing loss and military service was that he reportedly did not first notice tinnitus until some 20 years prior to his August 2012 VA examination, so not until 1992 or thereabouts, hence, not until long after his military service had ended.  But this cannot be reason alone for concluding he did not also have tinnitus during the many years proceeding that since it just may not have been to an extent that was readily discernible, though no less present albeit to some lesser degree.  See 38 C.F.R. § 3.303(d) (permitting service connection for a disease first diagnosed after discharge, if the evidence, including that pertinent to service, establishes the disease was incurred in service).

There also is authority for associating tinnitus with sensorineural hearing loss and in turn noise exposure, and it already has been conceded that his bilateral sensorineural hearing loss is a service-connected disability, in fact, on the premise of his noise exposure in service.  The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire." American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003).  An acoustic trauma can cause permanent hearing loss, but does not necessarily do so.  Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012).  Hearing loss and tinnitus are separate disabilities; however, medical treatises indicate the cause of tinnitus usually can be determined by finding the cause of the associated hearing loss.  See, e.g., Harrison's Principles of Internal Medicine 178 (Anthony S. Fauci et al. eds., 14th ed. 1998).

So, here, when recognizing the Veteran's bilateral sensorineural hearing loss already has been determined to be the result of the noise exposure during his military service in the manner alleged, so the cause of this disability, it necessarily follows that his tinnitus also has this same cause.  This certainly is an as likely as not proposition, and in this situation this reasonable doubt is resolved in the Veteran's favor and his claim granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Residuals of Cold Injury of the Left and Right Upper Extremities

The Veteran contends he was exposed to extremely cold conditions while stationed at Camp Tuto, Greenland, in April 1955 and consequently has residual disability.  See his July 2012 statement attached to his claim application, on VA Form 21-526, and his October 2012 NOD.

His DD Form 214 reflects that he had 10 months and 26 days of foreign and/or sea service.  His STRs, specifically a May 1955 dental treatment record, reflect he served in the "Trans Arctic Group".  He likely, then, had the type of exposure to cold weather that he is alleging.  38 U.S.C.A. § 1154(a).  It still has to be established he has consequent disability, however, as mere injury alone during his service is insufficient to show his entitlement to service connection unless there is disability as a result or consequence of that injury in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And it is in this equally critical respect that the evidence is far less favorable to his claim, so his claim must be denied.

Even acknowledging the possibility of relevant cold-weather injury in service, the Veteran's STRs reflect no complaints, treatment or findings related to injuries to his upper extremities, in particular, including especially as a result of cold weather exposure.  Notably, even during his September 1954 pre-induction examination, so before any exposure to cold weather during his service, clinical evaluation revealed abnormal findings of his upper extremities, which was specified as a traumatic amputation of the left middle finger through the distal interphalangeal joint and mild deformity of the left finger.  According to the report of his subsequent October 1956 separation examination, no abnormalities of the upper extremities were noted upon clinical evaluation.  In a November 1956 statement, he affirmed there had been no change in his physical condition since his "last final type physical examination" in October 1956.  His military service ended later that same month, in November 1956.

In his initial VA Application for Compensation or Pension, which he filed a relatively short time later, in December 1956, he alleged entitlement to service connection for a nervous condition/stomach disorder and reported service with the U.S. Air Force in Greenland, specifying service with a Trans-Arctic Group.  But there was no mention of cold-weather injury in that capacity or at that location involving his upper extremities (either).

During a January 1957 VA compensation examination, he again reported a history of being stationed in Greenland during his service.  But there again was no mention of cold-weather injury to his upper extremities, certainly not to the extent he is now alleging.

The other post-service medical evidence in the file, including not just the report of that January 1957 VA compensation examination, but also private medical records dated from January 1975 to May 1976, from June 2008 to July 2008, and from July 2012, as well as VA medical records from August 1998 to October 2012, reflect no complaints, findings or treatment for cold injuries to the upper extremities or for residuals of this type of trauma.  A September 2001 VA outpatient treatment report notes a reported history of a traumatic tip amputation on the non-dominant left hand middle finger at the distal interphalangeal joint or slightly proximal and second separate partial tip amputation on the index finger of the left hand.  In addition, the Veteran reported a history of a remote traumatic fracture of the right hand index finger causing partial flexion contracture at the proximal interphalangeal joint.  He was diagnosed, in part, with tip amputation, 
non-dominant left hand middle finger at distal interphalangeal joint and chronic left elbow olecranon bursitis.  No history of cold injuries was reported and no diagnosis of residuals of a cold injury of the left or right upper extremity was found at that time.  In a September 2003 VA outpatient treatment report he denied any heat or cold intolerance.

In May 2013 he submitted several photographs that he reported were from his time in service, particularly while stationed in Greenland.  Several of the photographs depict him at a younger age, in uniform, and in an area with a lot of snowfall.  So, again, this tends to show he had exposure to cold weather during his service.  But, to reiterate, he also has to have evidence of consequent disability.

The probative weight of the evidence of record is against finding that he has a currently diagnosed disability of either upper extremity that may be related to or a residual of prior cold-weather injury during his military service.  It is significant that when initially filing claims for VA compensation or pension rather immediately after his service, he did not mention having sustained any such cold-weather injury during his service, including as specifically affecting his upper extremities.  Had he in fact had such consequent disability at that earlier point in time, it seems only reasonable to expect that he would have mentioned it, but he clearly did not.  It was not until far more recently that he began making this allegation.  This resultantly tends to undermine his credibility insofar as him supposedly having had consequent disability ever since his cold-weather injury in service.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneously dated evidence has greater probative value than a contrary history as reported by the Veteran long after the fact).  This is especially true when also considering that may of his prior examinations were in the course of his earlier evaluation and treatment, when there was no incentive to fabricate information for personal gain, financial or otherwise.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).

The Board acknowledges the Veteran's lay statements that he has residuals of 
cold-weather injury from his time while stationed in Camp Tuto, Greenland, in April 1955.  He is competent to report his exposure to extreme cold conditions while there and, as already conceded, his statements of exposure to extreme cold in that capacity are otherwise supported by the evidence of record.  The Board cannot reject this lay testimony concerning this simply out of hand.  Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence).  See, too, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).  Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging 

in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).  

And, here, to the extent the lay statements by the Veteran are attempting to ascribe any exposure to extreme cold conditions in service to a particular or specific diagnosis, including that he currently may have, he is not competent to make this distinction.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Therefore, there is no competent medical evidence of any current residuals of a cold injury involving the left or right upper extremity.

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997).  The Court since has clarified that this requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 , 312 (2007).  The probative evidence of record clearly demonstrates that the Veteran does not have a current diagnosis denoting residuals of a cold injury of either upper extremity, and he has not at any time during the pendency of these claims (i.e., since the filing of them).


In Brammer v. Derwinski, 3 Vet. App. 223  (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

In Degmetich, it was observed that the law only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit Court observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability, namely current residuals of a cold injury of the upper extremities, there can be no valid claims.

For these reasons and bases, the preponderance of the evidence is against these claims, in turn meaning the benefit-of-the-doubt doctrine is inapplicable, and that these claims must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).



ORDER

The claim of entitlement to service connection for tinnitus is granted.

However, the claims of entitlement to service connection for residuals of cold injuries of the left and right upper extremities are denied.


REMAND

Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, the remaining claim of entitlement to service connection for COPD, it is necessary to ensure it is fully developed and receives all due consideration.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). 

Resolution of the appeal of this remaining claim turns on whether the Veteran's current COPD, or other current lung disability, is the result of exposure to extreme cold conditions during his service - assuming the weather conditions occurred as alleged - or, instead, is due to something else entirely.  See again Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

He maintains he was exposed to extreme cold conditions while stationed in Greenland during his service, and that his COPD is a consequence.  In particular, he alleges that his physician informed him that he had a black spot on his left lung that was due to some incident of frostbite.  See July 2012 statement attached to the July 2012 claim application, VA Form 21-526.


As already explained, the Veteran's statements of exposure to extreme cold during his service in Greenland are supported by the evidence of record, including especially:  his DD Form 214 confirming he had 10 months and 26 days of foreign and/or sea service; his STRs noting service in the "Trans Arctic Group"; the statements of service in Greenland made in connection with his December 1956 claim for service connection for a nervous/stomach disorder and made during the January 1957 VA examination; and the recently submitted photographs showing he was in an area with much snowfall at a younger age and in uniform.

Again, though, there has to be attribution of his COPD to that cold-weather exposure during his service.

His STRs reflect no complaints, treatment or findings related to a lung or respiratory disability, including COPD.  During his September 1954 pre-induction examination, clinical evaluation revealed normal findings of his lungs and chest.  Also during his later October 1956 military separation examination, no abnormalities of his lungs and chest were observed on clinical evaluation.  In a contemporaneous November 1956 statement, he personally acknowledged there had been no change in his physical condition since his "last final type physical examination" in October 1956.  So there is no suggestion he had COPD or other lung disability during his service, including as a result or consequence of any exposure to extremely frigid weather, such as while stationed in Greenland.

During his initial VA compensation or pension examination after service, in January 1957, which was provided in connection with a claim of entitlement to service connection for a nervous/stomach disability, he reported a history of being stationed in Greenland during his service.  But chest X-ray during that evaluation revealed normal findings.


Private medical records dated from January 1975 to May 1976 initially reflect some abnormality of the lungs.  A January 1975 chest X-ray revealed findings of a 1cm nodular density in the right lower lobe, essentially unchanged since October 1972.  Thereafter, a May 1976 chest X-ray revealed no significant change from the January 1975 X-ray, with a nodular density measuring approximately 1 cm by 1.5 cm in relation to the right lung base, with no significant change in size in comparison with the previous film.  

VA medical records dated from August 1998 to October 2012 reflect the Veteran was treated for and diagnosed with COPD, initially noted in November 2007.  A November 2007 VA outpatient treatment report noted that an X-ray of his chest had revealed findings suggestive of COPD, and he was diagnosed with a productive cough.  At that time, the VA treatment provider determined it could still be bronchitis, but more recent VA medical records reflect the Veteran was treated for and diagnosed with COPD.

Private medical records from June to July 2008 reflect that he was variously treated for and diagnosed with COPD, exertional dyspnea, shortness of breath, emphysematous lung disease with mild panlobular emphysema, old granulomatous disease and no evidence of pulmonary thromboemboli.  

A July 2012 private treatment report reflects a diagnosis of obstructive sleep apnea.  

Hence, there is indication of relevant cold-weather exposure in service, a suggestion of continuous symptoms ever since, evidence of treatment for a lung disability since January 1975, an indication of a lung disability dating back to at least October 1972 (per the January 1975 X-ray report), and a current diagnosis of a lung disability, including COPD and dyspnea.


A medical nexus opinion therefore is needed to assist in determining the etiology of the Veteran's current lung disorder, including his COPD, but especially in terms of the likelihood it is the result of the cold weather exposure during his service.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Also, as the record reflects he continues to receive ongoing treatment for his claimed disability, including apparently from VA, these additional records must be obtained and considered.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c).  See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive, if not actual, possession of the agency since generated and maintained within VA's healthcare system and, therefore, must be obtained if relevant or potentially determinative of the claim).

Accordingly, this remaining claim is REMANDED for the following additional development and consideration:

(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.  Obtain and associate with the claims file all pertinent medical treatment or other records the Veteran adequately identifies as needing to be obtained and considered, including especially all VA medical treatment records dated since May 2003.  For all records identified that are not in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls for all that are.  Also appropriately notify the Veteran if unable to obtain identified records.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional records, schedule an appropriate VA compensation examination of the Veteran's lungs to provide a diagnosis of his current lung disability, including COPD if present, and for a medical nexus opinion concerning the etiology of his current lung disability - but especially insofar as the likelihood (very likely, as likely as not, or unlikely) it incepted during his military service from November 1954 to November 1956 or is otherwise related or attributable to any disease, event, or injury during his service, particularly his alleged exposure to extreme cold weather conditions while stationed in Greenland.

Please Note:  The Veteran's lay statements regarding his exposure to extreme cold weather conditions while stationed in Greenland is competent evidence.  These statements are also supported by the evidence of record as discussed above.  His statements are only sufficient to establish relevant injury in service, however, not that he necessarily also has consequent lung disability such as COPD, hence, the reason the Board needs a medical nexus opinion concerning this determinative issue.

So to facilitate making this important determination of causation, the claims file, including a complete copy of this remand, must be made available to and reviewed by the designated examiner for the complete history, so the opinion is fully informed.


The examiner is explicitly directed to consider the following evidence:

(a).  The Veteran's DD Form 214 showing he had 10 months and 26 days of foreign and/or sea service.

(b).  The STRs noting service in the "Trans Arctic Group", specifically noted in the May 1955 dental treatment record. 

(c).  The statements of service in Greenland made in connection with the Veteran's December 1956 claim for service connection for a nervous/stomach disorder.  

(d).  The lay statements of service in Greenland made during the January 1957 VA examination, also in connection with the claim for service connection for a nervous/stomach disorder.

(e).  The May 2013 photographs showing the Veteran in an area with a lot of snowfall at a younger age and in uniform.  

(f).  Evidence of treatment for a lung disability since January 1975 and indication of a lung disability dating back to at least October 1972 (per the January 1975 X-ray report).  

(g).  The current medical evidence of record showing diagnoses of lung disabilities, including COPD, dyspnea, shortness of breath, emphysematous lung disease with mild panlobular emphysema, old granulomatous disease, no evidence of pulmonary thromboemboli, and obstructive sleep apnea.

(h).  And although the Veteran does not specify any other possible factors for his current lung disability, the examiner is also asked to discuss whether the Veteran has any other factors for any currently diagnosed lung disability and, if he does, specify them.

It is imperative the examiner provide a comprehensive report of his findings - including explanatory rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file.  

*The Veteran is hereby advised that it is his responsibility to report for the VA examination, to cooperate with the development of his claim, and that the consequences for his failure to report for a VA examination without good cause include potentially denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

If, without showing the required good cause, the Veteran does not report for the examination, then put a copy of the notice scheduling the examination in the file showing it was sent to his last known address prior to the date of the examination.  It also must be indicated whether any notice that was sent was returned as undeliverable.

3.  Ensure the VA examination opinion is responsive to the question posed.  If not, take corrective action to avoid another remand of this claim.  38 C.F.R. § 4.2 (2012); See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board errs as a matter of law in failing to ensure this compliance).

4.  Then readjudicate this remaining claim in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs