Citation Nr: 1340541 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-40 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2013, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, 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 Resolving doubt in the Veteran's favor, tinnitus had its onset in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159 (2013). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not address VA's duties to notify and assist. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Similarly, the Board need not discuss the undersigned Veterans Law Judge's compliance with the duties set forth at 38 C.F.R. § 3.103(c)(2), per Bryant v. Shinseki, 23 Vet. App. 488 (2010), at the hearing conducted in April 2013. Service connection is warranted if it is shown by evidence that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran has contended that his tinnitus is related to in-service noise exposure. First, the record reflects that the Veteran has a current disability. The February 2008 VA examination report reveals a diagnosis of tinnitus. With respect to an in-service injury or disease, the service treatment records are absent for any documentation of tinnitus. However, the Veteran's DD Form 214 shows that he received the Combat Medical Badge. He has stated that he was exposed to noise during his combat duties. 38 U.S.C.A. § 1154(b). The Board finds that the Veteran's reported noise exposure is consistent with the circumstances and conditions of his service and the incurrence of an in-service injury is met. With respect to evidence of a nexus between the Veteran's tinnitus and his in-service injury, the Veteran contended that he began to experience tinnitus during his period of active duty. In his application for VA benefits, he listed the date of onset as 1967-during his period of active duty. The Board recognizes that the February 2008 VA examination report noted that the Veteran reported the onset of his tinnitus as ten to fifteen years ago (years after separation from active duty) and, therefore, the examiner provided a negative nexus opinion. However, the Veteran contended that he did not report this to the examiner and that he has experienced tinnitus since his period of active duty. In this respect, the Board notes that the Veteran's statements are considered competent as tinnitus is a subjective disorder and the kind of disorder to which lay testimony is competent. In addition, the Veteran has some medical expertise and knowledge as reflected by his military occupational specialty as a medical specialist and his receipt of the Combat Medical Badge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Charles v. Principi, 16 Vet. App. 370, 374 (2002). Further, the statements from the Veteran, aside from that recorded in the examination report, consistently note that the tinnitus began during active duty. To the extent that there is any discrepancy as to the onset of the Veteran's tinnitus, the Board finds that, at the least, the evidence raises reasonable doubt as to whether his tinnitus is related to active duty. Thus, the Board will resolve the doubt in favor of the Veteran and grant service connection for tinnitus. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for tinnitus is granted. REMAND In an April 2009 statement, the Veteran reported that he was being treated at the VA community based outpatient clinic in Pontiac, Michigan. He asked the RO to get copies of these medical records as they are part of the VA system. There is no indication that the records were requested as there are no VA treatment records associated with the electronic or paper claims file. The United States Court of Appeals for Veterans Claims has held that records generated by VA facilities are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, the identified VA treatment records should be obtained and associated with the record. The Board also finds that a medical opinion should be obtained. The Veteran was provided a VA examination in June 2008. The examiner did not indicate review of the claims file. The examiner opined that the hypertension was not related to PTSD and that review of medical literature did not list PTSD as one of the etiological risk factors of hypertension. An addendum opinion was obtained in November 2008 wherein the examiner stated that review of the medical literature did not conclusively link PTSD as a risk factor for causing or aggravating hypertension and that the hypertension was not caused or aggravated by his PTSD. Subsequently, the Veteran submitted a letter in which a nurse practitioner, B.J.K., opined that the Veteran's hypertension was as likely as not aggravated by his PTSD. B.J.K. did not provide a rationale in support of the expressed opinion. A March 2008 private opinion was also submitted; however, there is no rationale for the expressed opinion. Following the addendum opinion, the Veteran submitted medical articles in which it is noted that those who have PTSD have a greater risk of hypertension and that veterans with mental health diagnoses had a significantly higher frequency of hypertension and other cardiovascular disease risk factors. In light of the above, the Board finds that another VA opinion would be useful in the adjudication of this matter. The November 2008 VA examiner stated that review of medical literature did not conclusively link PTSD as a risk factor for causing or aggravating PTSD. As noted above, the Veteran submitted evidence that suggests that there is a relationship between PTSD and hypertension. As a result, the Board finds that a new VA opinion should be obtained to address the nature and etiology of his hypertension. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim). Accordingly, the case is REMANDED for the following action: 1. Request all VA treatment records from the Pontiac, Michigan VA community based outpatient clinic. 2. Obtain an addendum opinion to ascertain the nature and etiology of the Veteran's hypertension. The examiner is requested to review the claims file. Express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any hypertension was caused or aggravated by the service-connected PTSD. Aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progress of the disorder, versus a temporary flare-up of symptoms. If the examiner determines that the hypertension was aggravated by the service-connected PTSD, the examiner should identify the level of disability caused by the service-connected PTSD, to the extent possible. A complete rationale should be provided for each opinion expressed. 3. When the development requested has been completed, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2013). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs