Citation Nr: 1342665 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-45 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an eye disability, to include macular atrophy and presbyopia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1966 to September 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Philadelphia, Pennsylvania Department of Veteran Affairs (VA) Regional Office (RO). In February 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. The Board has reviewed both the Veteran's claims file and his records in VA's electronic data storage system to ensure that the record considered is complete. The review of the documents in the electronic record found that they are either duplicates of evidence in the claims file or are not relevant to the issues on appeal. The matters of service connection for a respiratory and an eye disabilities are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran has tinnitus which is related to combat noise trauma. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, as service connection for tinnitus is being granted and the remaining matters on appeal are being remanded, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For a Veteran who engaged in combat with the enemy in active service, the Secretary of VA shall accept, as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of such incurrence or aggravation, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that no official record of such exists. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's military occupational specialty was crash fire and rescue. His DD Form-214 reflects that he was awarded a combat action ribbon. His STRs are silent regarding tinnitus. When he filed the instant claim the Veteran indicated that his tinnitus began in 1969. On February 2010 VA examination the Veteran told the examiner that he was uncertain regarding the onset of the tinnitus. The examiner opined that the tinnitus was probably related to the Veteran's hearing loss, but did not comment further regarding the etiology of the tinnitus. At the February 2012 Travel Board hearing, the Veteran testified that he first noted tinnitus following combat noise trauma, and that it has persisted since. At the outset, the Board notes that the Veteran served in combat (reflected by his combat action ribbon award) and is entitled to consideration of his claim under the relaxed evidentiary standards afforded by 38 U.S.C.A. § 1154(b). Also noteworthy is that tinnitus is a disability capable of lay observation by the person who experiences it, but is generally incapable of objective observation/verification. The Board is presented with a record that includes a combat veteran's statements (and sworn testimony) that his tinnitus began in service (although he is uncertain of the date of onset), and has persisted since. The Board finds no reason to question the Veteran's reports that he has tinnitus and that it began in service; they are not contradicted by other evidence in the record. As one way of substantiating a service connection claim is by showing that the claimed present disability became manifest in service and has persisted since, the requirements for establishing service connection for tinnitus are met; service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran contends his eye disability (macular degeneration) may be due to explosions in service in close proximity to him or to prolonged exposure to tropical sunlight, and that his respiratory disabilities may be due to environmental exposures (to include smoke from fires and asbestos) in service. He served in combat, and it is not in dispute that he may have been in close proximity to explosions associated with combat. Furthermore, by virtue of his occupational specialty in service it may reasonably be conceded that he was exposed to smoke from fires and to asbestos. Accordingly, VA's duty to assist in these matters includes obtaining adequate medical nexus opinions. On February 2010 VA eye examination the examiner noted only that the Veteran's eye disability is of unknown origin (and did not further comment regarding its etiology/possible relationship to service). Moreover, it appears the record was not available for the examiner's review in conjunction with the examination. Consequently, the report of that examination is not adequate for rating purposes. The Veteran was not been afforded a VA examination in connection with his claim of service connection for a respiratory disability. As he has diagnoses of asthma and bronchitis, and his exposure to asbestos and fire smoke may be conceded, the low threshold standard [as to when a VA nexus examination is necessary] endorsed by the U.S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 79. 83 (2006) is met, and a respiratory diseases examination is necessary. Accordingly, the case is REMANDED for the following: 1. The Veteran should be asked to identify the providers of all evaluations and treatment he has received for eye and respiratory disabilities (records of which are not already in the record -or determined to be unavailable), and to provide the releases needed for VA to secure record from any private providers. The RO should secure copies of complete clinical records of all evaluations and treatment from the providers identified. 2. The RO should thereafter arrange for the Veteran to be examined by an ophthalmologist to determine the nature and likely etiology of his current eye disability(ies). The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed appropriate should be completed. Based on examination and interview of the Veteran and review of the record, the examiner should provide opinions that respond to the following: (a) Please identify, by medical diagnosis, each eye disability entity found. (b) Please identify the likely etiology for each eye disability entity diagnosed, and specifically whether such is at least as likely as not (a 50% or better probability) related to the Veteran's active service, to include as due to explosions or exposure to tropical sunlight therein. If an eye disability diagnosed is deemed to be unrelated to service, the examiner should identify the etiology considered more likely. The examiner is asked to explain the rationale for all opinions given. 3. The RO should also arrange for a respiratory diseases examination of the Veteran to determine the nature and likely etiology of his current respiratory disability(ies). The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies indicated should be completed. The examiner should note that by virtue of his occupational specialty in service the Veteran is conceded to have been exposed to asbestos and fire smoke in service. Based on an examination and interview of the Veteran and review of the record, the examiner should provide opinions that respond to the following: (a) Please identify, by medical diagnosis, each respiratory disability entity found. (b) Please identify the likely etiology for each respiratory disability entity diagnosed, specifically is it at least as likely as not (a 50% or better probability) that the disability is related to the Veteran's active service (to include as due to exposure to asbestos and fire smoke therein). The examiner is asked to explain the rationale for all opinions. 4. The RO should then review the record and readjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs