Citation Nr: 1341263	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  09-28 048	)	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 an initial compensable disability rating for right great toe gouty arthritis prior to June 25, 2008, and a disability rating in excess of 20 percent since.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel




INTRODUCTION

The Veteran had active military service from  April 1988 to April 2008.

These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus, and granted service connection for right great toe gouty arthritis and assigned a noncompensable disability rating, effective May 1, 2008.  The Veteran submitted a Notice of Disagreement (NOD) with the disability rating assigned for his right great toe gouty arthritis in October 2008.  Subsequently, in a November 2008 rating decision, the RO increased the Veteran's disability rating for right great toe gouty arthritis to 20 percent, effective June 25, 2008.  In a December 2008 NOD, the Veteran disagreed with the 20 percent disability rating assigned for his right great toe gouty arthritis, and the denial of service connection for tinnitus.  He perfected his appeal in July 2009.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of an increased rating for right great toe gouty arthritis 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 evidence demonstrates that the Veteran's currently diagnosed tinnitus is related to his active service.



CONCLUSION OF LAW

The criteria for a grant of service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012);  38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required.  The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran.

II. Service Connection

Legal Criteria 

Service connection may be granted for a disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110, 1131.  If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service.  See 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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) 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). 

However, the absence of a documented disability while in service is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).   

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  

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 is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran.

Background

The Veteran contends that he currently suffers from tinnitus due to noise exposure during active military service.  

The Board observes that the Veteran is competent to state that he experienced noise exposure in service.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The Veteran's service treatment records do not demonstrate that he was diagnosed with tinnitus during active military service.  However, the Veteran's service treatment records contain multiple Hearing Conservation Examinations.  These records note that the Veteran had steady noise exposure and impulse noise exposure, with custom plugs.  Additionally, the Veteran's DD-214 noted his last duty assignment and specialties, such as flying training squadron, formal training instructor, trainer navigation, and mobility and bomber navigator.  Accordingly, the Board concludes that it is likely that the Veteran was exposed to acoustic trauma from airplane engines while serving in the Air Force.  The remaining question, therefore, is whether there is medical evidence of a nexus or relationship between the current tinnitus, and in-service noise exposure.

The Veteran was afforded an Ear, Nose, and Throat VA examination in July 2008.  The Veteran reported that he had intermittent tinnitus.  He was a flyer and was exposed to jet aircraft noise.  Upon examination, the examiner diagnosed the Veteran with intermittent tinnitus dating back to the late 1980s.  

The Veteran was afforded a VA examination in October 2008.  He reported intermittent tinnitus for both ears, but possibly worse in the left ear.  He first starting to notice the "ringing" a couple of years ago.  He claimed it just occurred "once in awhile."  The Veteran served in the Air Force from 1988 to 2008.  As a Navigator, he was exposed to B52s (8 engines), C130s (harmonic hum/gas turban compressors), and the T43s (high pitched).  He was also occasionally exposed to artillery shells.   Hearing protection was available.  He denied a history of civilian occupational or recreational noise exposure.  The examiner noted that there was no documentation in the Veteran's records to support a claim of hearing loss or tinnitus upon separation.  Therefore, due to the absence of acoustic damage upon separation, it was the examiner's opinion that it was not as least as likely as not that his hearing loss and tinnitus were related to his military service.  



Analysis

Based on the above facts, the Board concludes that the evidence for and against the Veteran's claim is at least in equipoise.  While the Veteran did not report tinnitus at the time of his separation from active duty, he has indicated that he had exposure to loud noises from airplane engines while on active duty in the Air Force and experienced tinnitus since he was discharged from service.  While there is no documentation of this, the Veteran is competent to testify to experiencing a ringing in his ears since military service.  When lay statements relate to the occurrence of events that are observable as a lay person, or the presence of symptoms of a disability that are subject to lay observation, they are competent evidence.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence).

In the present case, the Veteran was afforded VA examination in October 2008 to determine the nature and etiology of his tinnitus.  The examiner concluded that due to the absence of acoustic damage upon separation, it was the examiner's opinion that it was not as least as likely as not that his tinnitus was related to his military service.  Although the requested etiological opinion was provided, the examiner based his opinion solely on the fact that no disability was noted at discharge, and did not acknowledge or discuss the Veteran's lay statements discussing his reported in-service symptoms and noise exposure, or his continuity of symptomatolgy since.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2011) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).  Therefore, the Board finds that the VA examiner's opinion is not adequate for rating purposes.

Additionally, the record contains a July 2008 VA examination opinion pertaining to the Veteran's tinnitus.  Specifically, examiner diagnosed the Veteran with intermittent tinnitus, dating back to the late 1980's.  Additionally, the Veteran filed his claim of service connection for tinnitus in June 2008, a mere two months after being released from active duty in April 2008.  Further, he reported that he had not been exposed to civilian occupational or recreational acoustic noise after his discharge from active military service.

For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's claim of service connection for tinnitus.  He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails.  38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53.  Accordingly, the Board finds that service connection for tinnitus is warranted. 


ORDER

Service connection for tinnitus is granted.


REMAND

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to an increased disability rating for right great toe gouty arthritis.

The Veteran contends that his right great toe gouty arthritis is worse than the 20 percent disability evaluation currently assigned.  The Veteran was last given a VA examination in July 2008 in order to establish the severity of his service-connected right great toe gouty arthritis.  The Veteran submitted October 2008 lay statements detailing the symptoms and severity of his right great toe gouty arthritis, such as swelling, pain, and difficulty walking.

In this particular case, the July 2008 VA examination is too remote in time to address the current severity of the Veteran's service-connected right great toe gouty arthritis.  See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  

The Board is aware that the Veteran was scheduled for a VA feet examination in October 2010, which he failed to appear.  In the November 2013 brief, the Veteran's representative requested that the Veteran be afforded another opportunity to attend a VA examination.  It is unclear from the evidence of record whether the Veteran received notification that he had been scheduled for this examination.  Significantly, however, to date, the Veteran has not been afforded notice that, under 38 C.F.R. § 3.655, failure to report to an examination in conjunction with a claim for an increased rating will result in denial of the claim. 

Accordingly, the Veteran will be afforded another opportunity to undergo VA examination in relation to his increased rating claim on appeal.  However, on remand, the Veteran should also be notified that it is his responsibility to report for any scheduled examination based on notice sent to his last address of record, and to cooperate in the development of the case.  See 38 C.F.R. §§ 3.158 and 3.655.  In this regard, the Board highlights that, although efforts will be made to schedule the Veteran for VA examinations in relation to his claim, the burden is on the Veteran to apprise VA of his whereabouts, and if he does not do so, there is no burden on the part of VA "to turn up heaven and earth to find him."  Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

Additionally, the Board notes that a remand is necessary to obtain any outstanding VA treatment records for the Veteran's right great toe gouty arthritis.  See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).  The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim.

Accordingly, the case is REMANDED for the following action:

1) Send the Veteran a letter informing him that, pursuant to 38 C.F.R. § 3.655, failure to report to an examination in conjunction with a claim for an increased rating will result in denial of the claim.

2) The AMC should obtain any of the Veteran's outstanding VA treatment records.  Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file.  The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim.

3) After obtaining any available treatment records, the Veteran should be scheduled for a new VA examination to determine the current level of severity of his service-connected right great toe gouty arthritis.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  The examiner should note in the examination report that the claims folder and the remand have been reviewed.  All necessary testing should be provided.

The examiner should discuss the current severity of the Veteran's right great toe gouty arthritis, with particularity to the criteria for the diagnostic code (DC 5280-5017. 

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed.  In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim.  The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, the claims folder should 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 matter 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).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs