Citation Nr: 1338655 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-22 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for lower back condition, degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1966 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008 and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus and a lower back condition, degenerative joint disease. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A thorough review of the documents in the electronic file has been completed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary prior to final adjudication of the claims on appeal. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2013). Tinnitus The Veteran contends that service connection for tinnitus is warranted on the basis that he was exposed to acoustic trauma during active duty, which caused his current tinnitus disability. The Veteran's October 1968 separation examination is negative for any indication that he suffered from tinnitus. In May 2008, the Veteran raised the claim of entitlement to service connection for tinnitus alleging exposure to acoustic trauma while on active duty. In April 2010, the Veteran underwent a VA audio examination to address his tinnitus claim. During such examination, the Veteran was unable to provide a definitive onset of tinnitus. He merely stated that it was present "for many years." However, he attributed the tinnitus to his exposure to acoustic trauma from mortars, M16's, M60's, tanks, grenades, weapons, explosions, etc. The Veteran's records indicate a post service occupation with a natural gas utility company where he operated jack hammers, back hoes, and other heavy construction equipment to which he was required to wear hearing protection. On examination, the examiner concluded that, due to the lack available evidence pertaining to the initial onset of tinnitus, the unknown frequency, the first report of tinnitus being in an April 2008 medical record, the Veteran's denial of a history of tinnitus during his November 2008 audio examination, and the Veteran's prescribed ototoxic medications with possible side effects and symptoms that include tinnitus, she could not form an opinion regarding the etiology of the Veteran's tinnitus without resorting to mere speculation. Recent case law suggests that caution must be exercised when referring to medical reports and opinions as "nonevidence" and that, instead, the probative value or weight (competency and credibility) of the evidence should be assessed. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability, but also held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data were fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Board finds that there is enough information and evidence of record to formulate an etiology opinion regarding the Veteran's tinnitus claim. All of the reasoning that the April 2010 examiner included in her rational for not being able to form an opinion without resorting to mere speculation, is all evidence that should be considered in whether or not the Veteran's conceded noise exposure is at least as likely as not the cause of his current tinnitus disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Therefore, the claim must be remanded to obtain an addendum opinion on this matter. Lower Back Condition, degenerative joint disease The Veteran contends that he was thrown from a Jeep in October 1968 while on active duty and therefore service connection for his current lower back condition, degenerative joint disease is warranted. Review of the Veteran's service treatment records reveal that the Veteran was in an auto accident in October 1968 and complained of back pain. The diagnosis was a severe muscle spasm of right lumbar muscle. The treatment prescribed was 24 hours of bed rest and heat. The following day, negative x-rays were indicated. No additional treatment was noted. The Veteran was discharged from service approximately one month later. The Veteran filed the current claim for his lower back disability in May 2010 alleging that the 1968 accident during active duty was the cause of his current disability. The Veteran was afforded a VA spine examination in October 2010 to address the etiology of his current back disability. During that examination, the examiner noted a history of rheumatoid arthritis diagnosed in approximately 2003. The examiner diagnosed a lower back strain and a cervical strain. He opined that the current chronic back condition was less likely than not permanently aggravated by the 1968 auto accident in service. He supported his opinion with a rational that there was no indication of a long radicular process within the Veteran's service treatment records, there was little information known regarding the Veteran's post service work history that could have contributed to the degenerative process, and that the Veteran had a history of rheumatoid disease. The Board finds that a new examination to obtain a complete history of the back disability from the Veteran, to include his post service work history and any other injuries that could be contributing factors to his current condition, is necessary. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an audiologist to review the claims file in its entirety. The audiologist should note that the claims file has been reviewed. The audiologist is asked to opine as to whether it is as least as likely as not (meaning likelihood of at least 50%) that the tinnitus had its onset in service, or is otherwise related to service. The audiologist is advised that in-service noise exposure due to a military occupation as an infantryman is conceded. The lack of information and consistency regarding the Veteran's tinnitus noted in the April 2010 VA audio opinion is evidence that should be considered in forming such etiology opinion. A clear explanation for any opinion expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule the Veteran for a VA spine examination with a physician skilled in the treatment and diagnosis of spine disabilities. The claims file should be provided to the examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, including post service work history and history of rheumatoid disease, conducting a physical examination, and obtaining all appropriate diagnostic tests, the examiner should render an opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that the Veteran's current lower back disability had its onset in service, or is otherwise related to service. Specifically, the examiner is asked to address whether the current disability is related to the severe muscle spasm that the Veteran suffered from in October 1968 or whether the 1968 injuries were early symptoms or manifestations of the Veteran's rheumatoid disease that was established in 2003. A clear explanation for any opinion expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. AFTER COMPLETION OF THE ABOVE, readjudicate the Veteran's claims for entitlement to service connection for tinnitus and a lower back condition, degenerative joint disease. If the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).