Citation Nr: 1433763	
Decision Date: 07/29/14    Archive Date: 08/04/14

DOCKET NO.  13-01 069	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for tinnitus.
  
2.  Entitlement to service connection for a neck condition.

3.  Entitlement to service connection for a back condition.

4.  Entitlement to service connection for a left knee condition.

5.  Entitlement to service connection for a right knee condition.

6.  Entitlement to service connection for a thyroid condition, to include as secondary to a neck, back, and bilateral knee conditions.

7.  Entitlement to an increased compensable evaluation for internal and external hemorrhoids.




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1970. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The Veteran was afforded a hearing via live videoconference before the undersigned Veterans Law Judge (VLJ) on June 2014.  Copies of the transcript have been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issue(s) of entitlement to service connection for a neck, back, left knee, right knee, and thyroid conditions and entitlement to an increased compensable evaluation for internal and external hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Granting the Veteran the benefit of the doubt, the evidence of record demonstrates that tinnitus is related to active service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

With respect to the claim for entitlement to service connection for tinnitus, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.159 (2013). 





Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

Establishing service connection generally requires (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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). 

In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Background

The Veteran contends that he currently suffers from tinnitus that began during military service.  In particular, the Veteran has stated and testified at his June 2014 Board hearing, that he was stationed at a combat airfield in Vietnam and exposed to loud noises of weapons fire and aircraft.  He further provided that he was transported in C-130 aircraft that was extremely loud for long durations and that he was not given hearing protection.  The Veteran testified that it was during these C-130 flights in the military that he first experienced ringing in his ears.
  
The Veteran's VA outpatient treatment records and private treatments records document current complaints of tinnitus.  In a November 2008 private treatment record, it was noted that the Veteran had a standing history of tinnitus related to gunshot exposure.  In a March 2011 private treatment record, it was noted that the Veteran had been followed by that provider since 1995 and had complained of tinnitus since the initial visit.  The treatment provider opined that the Veteran's tinnitus was more likely than not related to military service.  In support, he provided that he had considered the Veteran's statements regarding noise exposure in the military and lack of noise exposure thereafter, consistent with his lifestyle.

 Analysis

The Board finds that the evidence of record supports service connection for tinnitus.  First, there is a current disability because the Veteran has provided competent and credible evidence of ringing in his ears in addition to current diagnoses shown in the VA outpatient treatment records and private treatment records.  See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  Second, there is an in-service incurrence because the Veteran has provided competent and credible evidence of ringing in his ears during service, beginning during C-130 flights in Vietnam.  Id.  Furthermore, the Veteran's service personnel record indicates that he did serve in his capacity in the Air Force at an airbase in Vietnam, which tends to support his contentions of being around loud aircraft, to include a C-130.  Third, the Veteran has provided competent and credible testimony that his tinnitus has continued since service discharge.  See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511.  Additionally, the Veteran's private physician provided a positive etiology opinion in light of the Veteran's statements that he has not had any significant post-military noise exposure.

 As such, the Board has determined that the Veteran is competent and credible in his report that he was exposed to acoustic trauma in service, experienced bilateral constant tinnitus in service, and has experienced continuous symptoms of tinnitus since service.  Therefore, service connection for tinnitus is warranted.


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  Remand is required to provide the Veteran with new VA examinations.

Neck, Back, and Bilateral Knees

The Veteran contends that his current neck, back, and bilateral knee disabilities are related to injuries sustained in two separate accidents during service, the first, an automobile accident, occurring  in April 1969 and the second, a truck accident in Vietnam, occurring in November 1969.  It is noted that the Veteran's service treatment records confirm the occurrences of both accidents, with the former indicating injury to the Veteran's neck, back, and knees, and the latter showing a low back injury.  The Veteran's post-service VA outpatient treatment records and private treatment records show both treatment and diagnosis of current disabilities relating to the Veteran's neck, back, and bilateral knees.  Although, the Veteran's private physician has provided a positive etiology opinion for these conditions relating them to the injuries sustained in service, it is unclear upon the exact evidence that the physician relied, as he merely stated that it was based upon the Veteran's statements, medical records, and buddy statements generally, without identifying particular ones.  As such, a sufficient rationale was not provided for that opinion.

The Veteran was provided with a VA examination in November 2013.  After having stated that he reviewed the claims file and having performed objective testing and observation of the Veteran, to include an interview, the examiner opined that it was less likely than not that the Veteran's neck, back, and bilateral knee conditions were a result of any in-service event or injury.  In support, the examiner provided that the Veteran sustained a thoracolumbar injury in service, as shown in the service treatment records, and that there was no follow-up treatment.  The examiner indicated that this was most likely an acute low back injury that was not uncommon for the circumstance.  There did not appear to be any analysis or discussion of the Veteran's April 1969 car accident injury, which involved not only the low back, but the neck and knees as well.  

The Board finds that the November 2013 VA examination opinion is inadequate to properly adjudicate the Veteran's claim.  There is no clear indication that all the pertinent evidence of record was considered in rendering the opinion.  This is particularly relevant in light of the fact that there are service treatment records showing injuries to the Veteran's back, neck, and knees in service.  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Here the examiner did not consider relevant evidence to the Veteran's claim and did not provide a thorough rationale as to why the Veteran's current conditions could not be related to military service.   As such, a new examination and opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the appellant's claims.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Thyroid

As to the issue of entitlement to service connection for a thyroid condition, the claim being remanded herein is inextricably intertwined with the Veteran's claim for a neck, back, and bilateral knee conditions.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  The issue of service connection for a neck, back, and bilateral knee conditions must be addressed by the agency of original jurisdiction before the Board renders a decision on the thyroid condition claim. This is due to the fact that the Veteran has alleged that his current thyroid condition was caused by excessive x-rays that were required for his years of treatment for his neck, back, and bilateral knee conditions.  Following the above development, the Board finds that it would be of great assistance to supplement the record by ordering a medical examination so as to determine whether the Veteran's thyroid condition was caused by or aggravated by the back, neck, and/or bilateral knee conditions.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Hemorrhoids

Last, in regard to the February 2014 VA examination, although it took the claims file, subjective history, and objective testing into account, it failed to adequately address the pertinent medical evidence of record.  In particular, the VA examiner found that the Veteran had no history of thrombotic hemorrhoids.  However, an April 2011 private treatment record indicated that the Veteran had been treated for thrombosis hemorrhoids and had even been treated for such with banding procedures for his internal hemorrhoids on 5 occasions in 2003 and 2004.  Although this time period would not be pertinent to the scope of the present appeal, as the Veteran's claim for an increased evaluation only goes back to April 2012, it does suggest a potential continuation of such condition and must be specifically discussed in light of the Veteran's current presentation.  Additionally, the Veteran has alleged that he was not provided with  a thorough examination as the examiner declined to observe the Veteran's internal hemorrhoids upon which to make an informed determination.  It is noted that the history of thrombosis was related to the Veteran's internal hemorrhoids.

The duty to assist includes providing a thorough and contemporaneous medical examination.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  In this regard, VA must provide a new examination due to an inadequate examination that did not thoroughly evaluate the Veteran's disability and consider and discuss relevant medical evidence related to such.  Accordingly, the Veteran should be afforded a new VA examination for his hemorrhoids.

Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Contact the Veteran and ask that he provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his disabilities on appeal.  After the Veteran has signed the appropriate releases, the records that are properly identified, and not already on file, should be obtained and associated with the claims folder. All attempts to procure these records should be documented in the claims file.  If the Agency of Original Jurisdiction (AOJ) cannot obtain the records properly identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for (an) appropriate examination(s) to evaluate his neck, back, and bilateral knees.  The entire claims file, to include a complete copy of the REMAND (if the examiner does not have access to the appellant's electronic (Virtual VA) file), must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions.  All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The examiner is asked to provide an opinion addressing the following questions: 

i. Does the Veteran have a currently diagnosed neck, back, or bilateral knee condition?  If so, identify it.

ii. Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed neck, back, or bilateral knee condition had its onset in service or is otherwise related to service?

The basis for each opinion is to be fully explained with a complete discussion of the pertinent (lay and medical) evidence of record and sound medical principles, including the use of any medical literature, which may reasonably illuminate the medical analysis in the study of this case.  The examiner must discuss both the April 1969 in-service automobile accident and the in-service November 1969 Vietnam truck accident.

3. Arrange to have the Veteran scheduled for an appropriate examination to evaluate his thyroid condition.  The entire claims file, to include a complete copy of the REMAND (if the examiner does not have access to the appellant's electronic (Virtual VA) file), must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions.  All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The examiner is asked to provide an opinion addressing the following questions: 

i. Does the Veteran have a currently diagnosed thyroid condition?  If so, identify it.

ii. Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed thyroid condition had its onset in service or is otherwise related to service?

iii. Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed thyroid condition was caused or aggravated beyond its natural progression by the Veteran's neck, back, and/or bilateral knee conditions, to include the provision of x-rays for the treatment of such conditions?  If aggravation is determined, the examiner is further requested to provide a baseline by which it can be determined the extent to which the thyroid condition was worsened beyond its natural progression.

The basis for each opinion is to be fully explained with a complete discussion of the pertinent (lay and medical) evidence of record and sound medical principles, including the use of any medical literature, which may reasonably illuminate the medical analysis in the study of this case.  

4. Arrange to have the Veteran scheduled for an appropriate examination to evaluate his internal and external hemorrhoids.  The entire claims file, to include a complete copy of the REMAND (if the examiner does not have access to the appellant's electronic (Virtual VA) file), must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions.  All indicated tests and studies (to include x-rays, if necessary) should be accomplished, to include observation of both internal and external hemorrhoids (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.  The examiner is asked to specifically note and discuss the April 2011 private treatment record showing treatment for thrombotic hemorrhoids and explain this within the context of the Veteran's current symptom presentation.

5. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

6. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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).




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


Department of Veterans Affairs