Citation Nr: 1520064	
Decision Date: 05/11/15    Archive Date: 05/26/15

DOCKET NO.  10-31 930	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to an evaluation in excess of 10 percent for cervical strain with cervicoscapular myofasciitis and degenerative joint disease (DJD).


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. M. Georgiev, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1988 to May 1992.

This matter comes before the Board of Veterans Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  Specifically, a November 2009 rating decision which denied service connection for PTSD and an increased rating for a cervical spine disability (and assigned a decreased rating), and a July 2010 rating decision which denied service connection for tinnitus.  The Board notes that a rating decision dated November 2005 denied service connection for residuals of a left inner ear infection, and the July 2010 rating decision incorrectly treated the November 2005 decision as a prior denial for tinnitus; the Board considers residuals of an ear infection and tinnitus to be two separate claims. 

The Veteran testified at a travel board hearing before the undersigned Veterans' Law Judge (VLJ) in March 2015.  A transcript of the hearing is associated with the claims file.

The Board has reviewed the Veteran's Virtual VA and VBMS electronic claims file to ensure a total review of the evidence.

The issues of service connection for PTSD and an increased rating for a cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDING OF FACT

Resolving doubt in favor of the Veteran, tinnitus was incurred in service.


CONCLUSION OF LAW

Service connection for tinnitus is warranted.  38 U.S.C.A. §§ 1110, 1111, 1154(b), 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.012, 3.159, 3.303, 3.304 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  To establish a right to compensation for a present disability on a direct basis, a 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2014).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).




Service Connection for Tinnitus

In the instant case, the Veteran has reported in-service noise exposure, and he is competent to do so.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting a veteran is competent to testify as to his own in-service experiences and observable symptomatology).  

Further, the Veteran has reported presently suffering from tinnitus.  The Veteran is competent to report his tinnitus, even without a medical diagnosis.  See Charles v. Principi, 16 Vet App 370 (2002) (finding veteran competent to testify to tinnitus which is capable of lay observation).  Tinnitus is a disorder uniquely ascertainable by the senses as it is defined as a ringing in the ears, a finding that can only be determined by the Veteran's reporting of the condition.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Other evidence of record supports that the Veteran suffers from tinnitus.  In December 2009, private treatment records show complaints of buzzing in the ears and a diagnosis of tinnitus.  In January 2010, the Veteran visited a VA audiologist who provided information to him on tinnitus coping strategies.  

Further, the evidence is at least in equipoise as to if the Veteran's tinnitus is etiologically related to his service.  The Veteran has stated that his tinnitus had its onset in service.  During the March 2015 hearing, the Veteran testified that he first observed ringing in his hearing in 1991 or 1992, and reported such to a doctor; although such reports are not reflected in the record.  The record reflects that the Veteran was treated in service for ear congestion, diagnosed with questionable otitis media and prescribed fluids and antibiotic therapy.  By a statement dated April 2009, the Veteran stated that he has had ringing and buzzing in his left ear since he was discharged from service.  

As well, the Veteran appeared for a VA examination in May 2010.  The VA examiner's opinion supported a positive nexus, noting a diagnosis of "tinnitus bilateral starting in 1998.  Specific cause probably secondary to a lot of loud noise exposure as an infantryman in the Marine Corp."

The Board notes a separate May 2010 VA examination by an audiologist which contains the opinion that the Veteran's tinnitus is not related to in-service noise exposure, as the Veteran's STRs reflect no in-service ear damage.  However, upon weighing the evidence, the Board does not find this opinion outweighs the evidence of record, including the Veteran's lay statements, which support a positive nexus.

For these reasons, the Board finds that the Veteran's lay contentions and the May 2010 VA examination which found tinnitus likely secondary to in-service noise exposure are sufficient to place the evidence as to the onset of tinnitus during service at least in equipoise.  When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Having resolved doubt in favor of the Veteran, the Board concludes service connection for tinnitus is warranted.


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

Upon preliminary review of the evidence of record, the Board finds that further evidentiary development is necessary regarding the Veteran's claimed service connection for PTSD and increased rating for a cervical spine disability.

I.  Entitlement to Service Connection for PTSD

Further evidentiary development is needed for the duty to assist to be satisfied for PTSD in-service stressors.  The Veteran has consistently stated that his PTSD was caused by his proximity to two young Marines who committed suicide in service; he was first responder to one of the incidents.  In July 2009, VA entered a formal finding on a lack of information ("memorandum") required to verify stressors, apparently based on a statement the Veteran submitted in June 2009.  However, the Veteran has since indicated date ranges that differ from those outlined in the memorandum.  In his March 2015 testimony, the Veteran indicated that the first suicide occurred in early 1989, and the second suicide occurred at the end of 1991 or beginning of 1992.  These date ranges more closely approximate the date ranges specified in a statement submitted by the Veteran in December 2008, which indicated the date ranges to be November 1, 1988 through February 15, 1989, and November 15, 1991 through February 15, 1992.  As such, a remand is necessary to allow a search to be conducted for these date ranges, as indicated by the Veteran during the hearing and December 2008 statement.

II.  Entitlement to Increased Rating for Cervical Spine/ Neck Disability

During the October 2015 examination, the Veteran contended that his January 2014 VA examination was inaccurate, as he had taken his pain medication two hours before the examination, which affected his range of motion.  He testified that he does not take his pain medication while in his employment, as his job does not allow him to take narcotics; thus he usually takes anti-inflammatory drugs and ibuprofen only.  The Veteran further testified that since his August 2009 VA examination, his neck disability has significantly worsened.  In light of these facts, the Board finds a new VA examination necessary to assess the current severity of the Veteran's service-connected cervical spine disability.

Accordingly, the case is REMANDED for the following action:

1.  Please conduct a search for records to corroborate the Veteran's statements in regard to his claimed PTSD stressor of two service member suicides, in particular, the Veteran's statements as indicated during the March 2015 hearing and December 2008 statement, which reflect the date ranges to be November 1, 1988 through February 15, 1989, and November 15, 1991 through February 15, 1992.  

2.  Schedule the Veteran for an appropriate VA examination in order to determine the current severity of his service-connected cervical spine disability.  The complete claims file must be provided to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed.  Based on the Veteran's reports and the results of examination, the VA examination report should include the criteria necessary to rate the cervical spine disability on appeal.

3.  Then, after completing any additional development needed, the AOJ should readjudicate the issues of service connection for PTSD and an increased rating for the service-connected cervical spine disability on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the AOJ should furnish to him and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board.

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 2014).


______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs