Citation Nr: 1522081 Decision Date: 05/22/15 Archive Date: 06/01/15 DOCKET NO. 13-34 796 ) 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 service connection for a left ankle disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issue of entitlement to service connection for a left ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has tinnitus that began during active service or is related to an incident of service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2014); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2014); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has been diagnosed with tinnitus, satisfying the first element of a service connection claim. Shedden, 381 F.3d at 1166-67; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran is competent to self-diagnose tinnitus). The Veteran's DD 214 notes that he served in the Republic of Vietnam and was awarded a Combat Infantryman Badge. He asserts that he was exposed to acoustic trauma in service. Acoustic trauma is consistent with the circumstances of combat and the Board accepts the Veteran's assertion that he was exposed to such as credible. 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2014). The second element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The Veteran underwent two VA examinations for tinnitus. The April 2012 opinion is inadequate because it did not take into account the Veteran's assertion that he has experienced tinnitus persistently since service. Therefore, it is not probative evidence. The June 2014 examiner noted that the Veteran reported that his tinnitus began when he was in his 40s and was only intermittent as opposed to recurrent. The examiner concluded that his tinnitus was not caused or aggravated by his period of service because he reported that it began approximately 20 years after separation from service. The June 2014 VA examination provides probative evidence against the Veteran's claim. Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Fountain v. McDonald, CAVC No. 13-0540 (February 9, 2015), ___ Vet. App. ___ 2015 WL 510609 (2015). Therefore, the theory of continuity of symptomatology is applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In his December 2013 VA Form 9, the Veteran stated that he experienced tinnitus daily and, "...it did start after [his] time in military very soon after...." As noted above, the Veteran is competent to state that he experiences tinnitus. Charles, 16 Vet. App. at 374. The Board also finds his assertion that he experiences tinnitus daily to be credible. The Board finds that the negative opinion of the June 2014 VA examiner and the Veteran's lay assertion of continuity of symptomatology are in relative equipoise. Therefore, the veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. REMAND The Veteran underwent a VA examination in June 2014. The examiner diagnosed ankle pain, with reported onset during the Veteran's period of miliary service. The examiner stated that imaging studies contained "no significant abnormal findings" except for a "prominent well-corticated spur in the calcaneus." The examiner noted that the Veteran "...state[d] even now his problem is his left foot much more than ankle and he thought he was being seen for left foot." Other than pain, no ankle disability was noted by the examiner. Pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board is mindful that the Court has held that functional loss caused by pain is akin to functional loss caused by physical disability. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). At his June 2014 examination, the Veteran reported that he was unable to walk long distance because of left ankle pain. His left ankle plantar flexion was 35 degrees without pain, indicating a loss of 10 degrees. 45 degrees is normal plantar flexion. 38 C.F.R. § 4.71, Plate II (2014). His dorsiflexion was normal. The examiner specifically found that the Veteran had functional loss due to less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. He also had localized tenderness or pain on palpation of the ankle joint. Because there is functional loss as a result of the Veteran's left ankle pain, the Board finds that it is akin to functional loss caused by a disability. Id. Therefore, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The June 2014 VA examiner provided a negative opinion based on a lack of documentation of a left ankle injury in the Veteran's service treatment records (STRs). The record shows that the National Personnel Records Center determined that the Veteran's complete STRs are not available. Therefore, the examiner's reliance on lack of documentation in the STRs renders the opinion inadequate and an addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the June 2014 ankle examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. Only if a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. For the purposes of the opinion, the examiner is advised that the Board has found that the types of functional loss due to pain as described in the June 2014 VA examination report are akin to functional loss from a disability. c. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. The Veteran's September 2012 Notice of Disagreement which noted that he injured his left ankle in service and continued to have medical treatment for it since that time. d. In providing the requested opinion, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence, especially in light of the fact that his complete STRs are not available. e. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability began during active service; or, is related to any incident of service; or, if arthritis is diagnosed, began within one year after discharge from active service. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then 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 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). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs