Citation Nr: 1510378 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 13-10 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left wrist disability, claimed as ganglion cyst. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2104. A transcript of the hearing is associated with the record. The Board has recharacterized the Veteran's claim for service connection for ganglion cyst of the left wrist as a claim for service connection for any left wrist disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record before the Board consists of the Veteran's paper claims file and electronic records within Virtual VA. The issue of entitlement to service connection for a left wrist disability is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. In a July 2014 hearing, prior to the promulgation of a Board decision, the Veteran informed VA that he desired to withdraw his appeal for entitlement to service connection for PTSD. 2. Tinnitus is etiologically related to the Veteran's active service. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2014). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In a July 2014 Board videoconference hearing, the Veteran informed the undersigned Veterans Law Judge that he desired to withdraw his appeal for entitlement to service connection for PTSD. Consequently, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it must be dismissed. Service Connection for Tinnitus Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice with respect to the effective-date element of his claim. In addition, the evidence currently of record is sufficient to substantiate the claim of entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2014). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as organic disease of the nervous system, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that service connection is warranted for tinnitus because it developed in service as a result of noise exposure in the Republic of Vietnam. The Veteran's DD Form 214 identifies his occupational specialty as rifleman and reflects that he was awarded the Purple Heart Medal. The Veteran's service treatment records (STRs) are negative for complaints or treatment for any ear disorder, to include tinnitus. A May 1965 induction examination disclosed that the Veteran had left ear hearing loss and an August 1969 separation examination disclosed hearing acuity of 15/15 on the whispered voice test. In an October 2011 VA audiological examination, the Veteran stated he sustained hearing loss and shrapnel wounds of his face and head during his tour in Vietnam, but did not know the onset of his tinnitus. He reported that he worked as infantry and military police and was exposed to noise from M16s, mortars, hand grenades, and incoming artillery in Vietnam without hearing protection, occasional occupational noise exposure at a steel mill with hearing protection, and recreational hunting noise without hearing protection. The examiner opined that the Veteran's bilateral tinnitus was less likely as not caused by or a result of his active service because there was no direct link between tinnitus onset and the Veteran's period of service since the Veteran did not know when tinnitus began and there was no complaint of tinnitus in his STRs. Following a November 2013 VA audiological examination, the examiner opined that the etiology of the Veteran's tinnitus could not be resolved without resorting to speculation because there was a discrepancy in timing of the onset of the tinnitus. The examiner explained that the Veteran stated he did not know when his tinnitus began in the last VA examination, but reported that his tinnitus began in 1967 in the current examination. The examiner noted there was no mention of tinnitus in the STRs. A December 2013 VA addendum opinion explained that the examiner would have to resort to speculation to determine whether the Veteran's tinnitus was secondary to service-connection bilateral hearing loss because the Veteran had pre-existing hearing loss upon induction and it was not possible to know whether tinnitus was associated with the hearing loss the Veteran had prior to service or if it was associated with any additional hearing loss that occurred during active service. In a July 2014 videoconference hearing, the Veteran testified that he had acoustic trauma due to combat in Vietnam and clarified that during the October 2011 VA examination, he initially reported that he did not really know the onset of tinnitus but later told the examiner that it began after being hit by mortar rounds in combat. The Veteran stated that he was involved in numerous combat actions in 1967 in Vietnam, was exposed to M16 weapons and mortar fire, and that he noticed a buzzing sound in his ears in service and ever since. The Board finds the Veteran's statements concerning his in-service duties and the onset and continuity of tinnitus since service to be competent and credible. The Veteran consistently reported his in-service duties with noise exposure due to combat in Vietnam and plausibly explained the discrepancy between the history recorded in the October 2011 VA examination report and the history reported by the Veteran on other occasions. The Veteran's statements of experiencing rifle, artillery, and mortar fire and explosions are bolstered by his identified occupational specialty of rifleman. Morever, the Veteran is a recipient of the Purple Heart Medal so his participation in combat is established. Therefore, the Board concedes that the Veteran experienced acoustic trauma in service. Additionally, the Veteran competently stated that tinnitus began after a mortar explosion while serving in Vietnam and that he has experienced tinnitus ever since. Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay statements are competent evidence of a diagnosis if they describe symptoms that support a later diagnosis by a medical professional). The Board acknowledges that the October 2011 and November 2013 VA examination reports and December 2013 addendum opinion are against the Veteran's claim. However, the Board finds the VA examination reports and addendum opinion of little probative value since the examiners did not accept the Veteran's account of the onset of tinnitus in service and its continuity since service. The Board finds the Veteran's lay contentions with supporting service records that tinnitus began in service place the evidence in favor of the claim at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for tinnitus is warranted. ORDER The appeal for service connection for PTSD is dismissed. Service connection for tinnitus is granted. REMAND The Board's review of the record reveals that further development is warranted before the remaining claim on appeal is decided. The Veteran filed a claim for entitlement to service connection for left wrist disorder, ganglion cyst, in July 2011. A March 1966 STR reflects that the Veteran reported pain in the left wrist due to an initial injury during July 1965 physical training exercises and that he sought no medical attention at the time. The Veteran reported that while on active duty in September 1965 he continued to have difficulty with push-ups and hand to hand combat. A March 1966 X-ray report indicates that the Veteran's left wrist was positive for evidence of an old fracture with an impression of compression fracture through the left navicular with irregular sclerosis and cystic changes along the fracture site. In a September 2011 VA examination, the Veteran reported that he did a lot of pushups in basic training and was evaluated for a ganglion cyst prior to a tour in Vietnam. He stated he did not have surgery because he did not want to change companies and that currently his left wrist ached, especially in cold weather, and that he experienced flare-ups from movement such as twisting a door knob. The examiner noted the Veteran had a diagnosis of ganglion cyst in the left wrist in late 1965 or early 1966, and that currently there was no real cystic lesion palpated or observed on the dorsum of the left wrist but a bony enlargement at the wrist area distal to the radius and a noted pervious trauma of the wrist. The examiner found loss of motion of the wrist in radial deviation and dorsiflexion, muscle loss from apparent prior nerve injury and carpal tunnel syndrome, and that both wrists demonstrated degenerative or traumatic arthritis. A September 2011 X-ray report provides an impression of bilateral degenerative change, as well as post-traumatic changes, left greater than the right. The examiner opined that the arthritic changes of the left wrist were not related to a ganglion cyst in service and that there was no ganglion cyst at the time of the examination. In a July 2014 videoconference hearing, the Veteran testified that he had pain in his left wrist in service when he did pushups or pull-ups that began prior to his tour in Vietnam. He stated that he noticed a bump on his left wrist that a doctor subsequently diagnosed as a ganglion cyst. The Veteran indicated that he went to a wrist specialist sometime in the 1970s who told him the bump in his wrist was a ganglion cyst and that treatment of removing the cyst would not help the pain. The Board finds the September 2011 VA examination report inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the VA examiner failed to provide an opinion with adequate supporting rationale as to whether the Veteran's left wrist arthritis is directly related to service, to include left wrist pain later diagnosed as ganglion cyst. The September 2011 VA examiner only addressed whether the Veteran had a current diagnosis of ganglion cyst and whether any current arthritis was related to a prior diagnosis of ganglion cyst. However, the Veteran reported left wrist pain during physical training in service and a March 1966 STR indicates the Veteran injured his wrist during July 1965 physical training exercises and provides an impression of compression fracture through the left navicular with irregular sclerosis and cystic changes along the fracture site. In light of the Veteran's statements, the March 1966 STR, VA medical opinion finding a left wrist disability other than ganglion cyst, and the Board's determination that the issue on appeal encompasses any left wrist disability, the Board has determined that the Veteran should be afforded another VA examination to determine the nature and etiology of all left wrist disorders present during the period of the claim. As the case must be remanded, the RO or the Appeals Management Center (AMC) should obtain and associate with the record any other outstanding, pertinent records, to include any VA treatment records. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim, to include any VA treatment records. 2. Then, all pertinent evidence of record must be made available to and reviewed by the September 2011 examiner. Based on the review of the Veteran's pertinent history and the prior examination results, the examiner should identify each left wrist disorder present during the period of the claim (July 2011 to the present). With respect to each such disorder, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to the Veteran's active service. The rationale for all opinions expressed must also be provided. The examiner should specifically discuss the March 1966 STR. If the examiner is unable to provide any required opinion, he should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the September 2011 examiner is unavailable, all pertinent evidence of record must be made available to and reviewed by another physician who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs