Citation Nr: 1337060 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 13-13 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of thumb fracture. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for residuals of thumb fracture 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. FINDING OF FACT The Veteran's tinnitus is causally related to his acoustic trauma in service and/or service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection for Tinnitus The Veteran asserts that tinnitus is related to exposure to weapons noise during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, § 3.303(b) does not apply to the claim for service connection for tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran's DD-214 reflects that he was a weapons mechanic. The Veteran is also service-connected for bilateral hearing loss. Thus, his exposure to acoustic trauma in service is conceded. The Veteran's service treatment records are negative for complaints or findings of tinnitus. Post-service complaints of tinnitus are initially shown in VA audiology treatment records dated in March 2010. The March 2010 VA audiology treatment record shows that the Veteran reported intermittent tinnitus, bilaterally, for many years. In written statements in support of his claim, the Veteran has asserted that he has had tinnitus since service. In a January 2011 statement, the Veteran indicated that he has had ringing in his ears since service. The Veteran also reported a history of tinnitus since service in the April 2013 substantive appeal. The Veteran had a VA examination in July 2011. The Veteran reported a complaint of tinnitus. With regard to circumstances of onset, the VA examination report noted that the Veteran reported that the onset of tinnitus was approximately 4-5 years ago. In the April 2013 substantive appeal, the Veteran noted that he told the VA examiner that he had tinnitus since service, which was worse in the last 4 to 5 years. The VA examiner opined that it is less likely than not that tinnitus is a result of in-service noise exposure. The VA examiner reasoned that the Veteran's claims file is silent for complaints of tinnitus. The VA examiner noted that the Veteran was unable to identify a specific event to onset of tinnitus and reported a recent onset to be approximately 4-5 years prior, which was 34 years after service. The recitation of the Veteran's lay history is inaccurate as the Veteran has since clarified that his tinnitus became worse 4-5 years earlier. The VA examiner noted that the Veteran has a medical history of high blood pressure, cholesterol and diabetes, which are risk factors for tinnitus. After a careful review of the evidence, the Board finds that the Veteran's current tinnitus disability is related to his military service and/or service-connected diabetes mellitus. In making this determination, the Board notes the Veteran's assertions that he first noticed tinnitus in service and has continued to experience tinnitus since service are found to be capable of lay observation, and therefore, his statements constitute competent evidence. Lay evidence may establish the existence of a current disorder capable of lay observation, to include tinnitus. Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran is competent to identify tinnitus. The Board also finds the Veteran credible, as his statements regarding tinnitus since service are consistent with the evidence of record, including the history reported in the VA medical records of bilateral tinnitus for "many years." Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The VA examiner also indicated that the Veteran's tinnitus may be secondary to diabetes mellitus, which is a service-connected disability. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether tinnitus is related to active service or to service-connected diabetes mellitus. Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for tinnitus is granted. REMAND The Board finds that additional development is warranted with regard to the claim for service connection for residuals of thumb fracture. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran asserts that a residual right thumb disability is related to a right thumb fracture in service. Service treatment records show that the Veteran was treated for a thumb fracture in September 1971. The Veteran had a VA examination in July 2011. The VA examiner diagnosed mild tenosynovitis. The VA examiner opined that the Veteran's claimed residuals of a broken thumb is less likely than not caused by or a result of the injury of the right thumb during active duty. The VA examiner reasoned that service treatment records and VA records failed to document evidence of chronicity and were silent for complaints of residual effects of a right thumb fracture. In an April 2013 statement, the Veteran disagreed with the VA examiner's statement regarding a lack of chronicity of his thumb disability. He indicated that he has many days when he is unable to move his thumb and that he could not seek medical attention every time his thumb hurt. The Board finds that a supplemental opinion is warranted to address the Veteran's statements regarding his right thumb disability, and specifically the Veteran's report of not being able to move his thumb. Barr, 21 Vet. App. at 312. The RO should also obtain any additional VA treatment records since July 2010. 38 U.S.C.A. § 5103(A)(b)(3), (c)(2); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the VA Medical Center in Tampa, Florida. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Request an addendum opinion from the VA examiner who conducted the July 2011 VA examination of the right thumb. If the same examiner is not available, a different examiner should be asked to review the claims file and provide the requested opinion. The VA examiner should provide an opinion regarding whether current right thumb tenosynovitis is at least as likely as not (50 percent or greater likelihood) related to the right thumb fracture treated in service. In providing this opinion, the VA examiner should consider the Veteran's reports of symptoms since service, such as being unable to move his thumb. The VA examiner should provide a detailed rationale for the opinion. If the VA examiner cannot provide a rationale without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. 3. Review the opinion obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if the question posed is not answered. 4. Thereafter, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The matter should then be returned to the Board, if in order, for further appellate process. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs