Citation Nr: 1335789 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-19 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1955 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision from the Cheyenne, Wyoming, Department of Veterans Affairs (VA) Regional Office (RO). In January 2009, the Veteran appeared at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In February 2009, the Board reopened the claim for service connection for a lower back disability and remanded the reopened claim, as well as the claims for service connection for bilateral hearing loss and tinnitus, for further development. As the medical opinions obtained pursuant to the Board's remand directives regarding the etiology of the Veteran's lower back disability and bilateral hearing loss are inadequate, these service connection claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran reports the onset of constant, bilateral tinnitus during active service. There is no evidence to the contrary. 2. A probative VA medical opinion relates the Veteran's tinnitus to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection The Veteran reports that he was exposed to acoustic trauma during his approximate 28 years of service, including noise resulting from jet engines, bomb blasts, rifles, and generators, and that as result of this exposure, he developed tinnitus. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). As a lay person, the Veteran is competent to report experiences which are capable of lay observation, to include noise exposure and the onset of certain disabilities, including tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran's DD Form 214 corroborates his report of exposure to acoustic trauma during service, as the Veteran was awarded the Small Arms Expert Marksmanship Ribbon. The Veteran's reports of other forms of in-service acoustic trauma are consistent with the circumstances of his service and have remained consistent over time. The Veteran reports the onset of his constant, bilateral tinnitus during the latter part of his period of active service, sometime between 1979 and 1982. When completing his separation medical history in May 1983, the Veteran affirmed a history of a hearing impairment. As the Veteran's competent reports of exposure to acoustic trauma and onset of tinnitus during service are uncontroverted and supported by the record, they are deemed credible and accorded great probative value. In May 2009, the Veteran underwent a VA audiological examination, at which time the examiner diagnosed the Veteran with tinnitus and stated that given the Veteran's exposure to acoustic trauma during active service, and his report of the onset of tinnitus during active service, it is at least as likely as not that the Veteran's tinnitus is related to his military noise exposure. The Board accords this medical opinion great probative value, as it is stated unequivocally, is consistent with the Veteran's reports and medical history, and is supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). The evidence of record establishes the onset of tinnitus during service as the result of military noise exposure; there is no evidence to the contrary; and service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND With regard to the Veteran's service connection claim for a lower back disability, the medical opinion rendered by the examiner who performed the Veteran's May 2009 VA spinal examination is inadequate. The examiner diagnosed the Veteran with a lumbosacral strain, and noted radiological evidence of degenerative changes of the lumbar spine (presumably forming a basis for a diagnosis of degenerative joint disease of the lumbar spine). However, the examiner failed to provide an opinion as to the etiology of the Veteran's current lumbosacral strain, instead merely noting that the Veteran had remarkably few degenerative changes of his lumbar spine given his advanced age. This omission is particularly significant given the Veteran's in-service diagnoses of lumbosacral strain. A new opinion is required. With regard to the Veteran's service connection claim for bilateral hearing loss, the VA examiner who performed the Veteran's May 2009 audiological examination stated that it is less likely that the Veteran's current bilateral hearing loss is related to service, as the Veteran's separation medical examination failed to reveal audiometric evidence of hearing loss. As this medical opinion failed to address the Veteran's report of the onset of a hearing impairment during service, continuity of hearing loss since service, and his report of exposure to significant acoustic trauma only during active service, it is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of medical records to provide a negative opinion). The Veteran reports that service treatment records from the Fitzsimons Army Medical Center in, Denver, Colorado, created at the time of his discharge (not after service) are not of record and should be obtained. Efforts to obtain these federal records must be undertaken. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the Fitzsimons Army Medical Center from 1983. If these records are unavailable, documentation of the unavailability must be associated with the claim file. 2. Provide the Veteran's claim file to an appropriate medical professional who has not previously conducted a spinal examination of the Veteran. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The Veteran need not be reexamined unless deemed necessary to obtain the requested medical opinion. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current lumbosacral strain is related to service. When rendering this opinion, the examiner is to review and consider the Veteran's credible, consistent report of initially injuring his back in 1955 during active service; diagnoses of lumbosacral strain made during service; and the Veteran's numerous reports of experiencing low back pain during service, including his report of experiencing recurrent back pain when completing his separation medical history report. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Provide the Veteran's claim file to an appropriate medical professional who has not previously conducted an audiological examination of the Veteran. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The Veteran need not be reexamined unless deemed necessary to obtain the requested medical opinion. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss is related to service. When rendering this opinion, the examiner must consider the Veteran's report of the onset of a hearing impairment during service and continuity of hearing loss since service; his affirmation of experiencing hearing loss when completing his separation medical history report; and his report of exposure to significant acoustic trauma only during active service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs