Citation Nr: 1331718 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 07-17 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating greater than 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Offices (RO). During the pendency of this appeal, the RO granted an initial 10 percent rating for the Veteran's service-connected GERD, retroactive to the day after service discharge. Because this is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Following the April 2007 statement of the case (SOC), the Veteran testified before an Decision Review Officer (DRO) at the RO in September 2007 and a transcript of that hearing is on file. An October 2010 Board decision denied initial compensable disability ratings for allergic rhinitis and for right wrist bursitis. The remaining claims were remanded for further development. The issue of entitlement to service connection for bilateral hearing loss has been raised by a review of the record. In his October 2011 letter, the Veteran reported that he had worked on fighter aircraft with jet engines during his entire military career and as a crew chief he could not complain of any hearing problems. Thus, although audiometric testing on VA examinations in January 2006 and December 2012 found no hearing loss by VA standards under 38 C.F.R. § 3.385, it appears that the Veteran wishes to claim service connection for a hearing loss. Because a claim of service connection for bilateral hearing loss has not yet been adjudicated by the RO, the Board does not have jurisdiction over this claim and it is referred to the RO for appropriate action. The issue of entitlement to an initial rating greater 10 percent for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The record evidence shows that chronic tinnitus first was reported only four days after service discharge. 2. Resolving all reasonable doubt in the Veteran's favor, tinnitus was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's service connection claim for tinnitus, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Laws and Regulations Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (a) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) which requires (i) a sufficient combination of manifestations for disease identification, and (ii) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic" and (iii) subsequent manifestations of the same chronic disease, or (b) if chronicity in service in not established, as above, by evidence of continuity of symptomatology which requires that (i) a condition was 'noted' during service, and (ii) evidence of postservice continuity of the same symptomatology, and (iii) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition, i.e., when its symptoms are capable of lay observation and it may be diagnosed by its unique and readily identifiable features; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson, 581 F.3d at 1316 (Fed.Cir. 2009). Factual Background The Veteran served in the Air Force and his military occupational specialty (MOS) was a tactical aircraft superintendent. His DD-214 shows that he received the Marksmanship Ribbon. While the service treatment records do not show complaints of tinnitus, the Veteran is competent to report past and current symptoms of tinnitus. Duenas v. Principi, 18 Vet. App. 512 (2004) and Charles v. Principi, 16 Vet. App. 370 (2002). At the September 2007 DRO hearing, it was pointed out that the Veteran worked for more than 26 years in the Air Force as a crew chief in and around jet aircraft which it was alleged was the sole cause of his current tinnitus. He had no post-service contributing factors. The Veteran testified that he worked as a water treatment plant operator but had no acoustic trauma from this employment. Despite wearing protection during service he was still exposed to inservice acoustic trauma. He had no recreational activities that exposed him to loud noise but he did hunt about once a year. He could not recall if any audiologist had informed him that his tinnitus was due to inservice acoustic trauma. In his October 2011 letter the Veteran reported that, in keeping with his MOS, he had worked on fighter aircraft with jet engines during his entire military career. As a crew chief he could not complain of tinnitus or he would have been removed from the flight line. Thus, he had never complained of tinnitus during his military career. The first evidence of tinnitus is when the Veteran filed his VA claim for service connection, on November 4, 2005, just four days after his discharge from active service. On VA audiology examination in January 2006, the claims file was reviewed and the examiner reported that the STRs included an October 1993 record that the Veteran denied having tinnitus. The Veteran reported currently having tinnitus and having worked on a flight line around aircraft with jet engines, while using hearing protection, from 1979 to 2005. After service he worked at a water treatment plant but wore hearing protection from the noise of air compressors, pumps, and blowers. He wore hearing protection upon recreational exposure of hunting twice years and the use of a chain saw. Audiometric testing was conducted. Without stating a rationale, the examiner noted that the Veteran's tinnitus is less likely than not related to his service. On VA examination in December 2010, the Veteran complained of occasional ringing in one or both ears, several times daily and which lasted between thirty seconds to a minute. The examiner diagnosed recurrent tinnitus. The examiner stated that that complaints of intermittent tinnitus were not clinically significant and "there was no history of incident to determine cause of tinnitus. Symptoms have not worsened with continued noise exposure, both recreational and industrial, for nearly twenty years." Analysis The Board finds that the evidence supports granting service connection for tinnitus. Although the 2010 VA examiner did not identify a specific "incident" as the cause of tinnitus, this is not a requirement for granting service connection. Likewise, even if the tinnitus has not worsened since discharge from service, this also does not weigh against the claim. Significantly, the 2010 VA examiner concluded that the Veteran had intermittent tinnitus and this was not clinically significant. The Board notes that 38 C.F.R. § 4.87, Diagnostic Code 6260, provides a 10 percent rating for "recurrent" tinnitus. Here, the Veteran's description of his tinnitus is that it occurs not only every day but several times daily. Thus, the 2010 VA examiner's description of the tinnitus as being "intermittent" is not binding because the description can as easily be found to be as adequately characterized as recurrent (occurring several times every day) and because the examiner specifically diagnosed the Veteran as having recurrent tinnitus. Since it is clear that the Veteran has experienced tinnitus since at least four days after service discharge when he filed his original VA claim, it would be illogical not to conclude that his currently diagnosed recurrent tinnitus had its onset during active service. Moreover, there is no evidence to rebut his lay statements and testimony that the tinnitus began a number of years prior to his service discharge. Together with the documented presence of "recurrent" tinnitus currently and beginning just four days after service discharge, the Board concludes that, after resolving any reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran contends that his service-connected GERD is more disabling than currently evaluated. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. Treatment records from Mountain Home Air Force Base show that the Veteran's GERD had become more symptomatic with more frequent gastric discomfort and that he reported having frequent spontaneous regurgitation but no dysphasia, chest pain, or shortness of breath. Because of this, a Nissen fundoplication was done in February 2007, following which an April 2007 rating decision granted a 10 percent disability rating for GERD effective November 1, 2005 (the day after discharge from active service). At the September 2007 DRO hearing the Veteran testified that his GERD had been "fixed." This apparently refers to his post-service gastrointestinal surgery. On VA examination in September 2008, the Veteran reported that over the last four weeks he had noticed an increase in symptoms, having non-radiating pain. He had been placed back on medication. There had been an improvement as to his pain over the last two weeks since restarting the medication. On examination he denied any dysphagia, hematemesis, and melena. He had no symptoms of reflux, but he had mild nausea with abdominal pain. Following the 2010 Board remand to obtain treatment records for GERD, a VA Form 21-0820, Report of General Information, reflects that, by telephone communication on March 1, 2011, the Veteran stated that records he submitted from the 366 Medical Group were the records needed for his claim and there was no need to request additional records. Treatment records from the 366 Medical Group showed that, in June 2009, the Veteran was seen for complaints of abdominal pain in the central upper belly. In October 2010, he was prescribed Prevacid for GERD. In January 2011 correspondence, the Veteran stated that, despite his surgery in 2007, he still had symptoms of GERD for which he took medication. In an October 2011 letter, he reported that his symptoms of GERD had returned in 2009 although medication helped. In the November 2012 Informal Hearing Presentation, the Veteran's service representative observed that the most recent VA gastrointestinal examination for rating the service-connected GERD was in September 2008. Citing Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) and VAOPGCPRED 11-95 (1995), the representative argued that the September 2008 VA examination was not sufficiently up-to-date to evaluate the current nature severity of the Veteran's service-connected GERD and remand was requested. The Board agrees with the representative's argument concerning the need for a remand in order to obtain up-to-date VA examination findings concerning the current nature and severity of the Veteran's service-connected GERD. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected GERD since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate VA examination to determine the current nature and severity of his service-connected GERD. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether the Veteran's service-connected GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The examiner also is asked to state whether the Veteran's service-connected GERD is manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.112 provides that for rating purposes, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. The term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 2. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs