Citation Nr: 1526371 Decision Date: 06/22/15 Archive Date: 06/30/15 DOCKET NO. 13-30 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of the removal of a mass from the neck. 3. Entitlement to service connection for bilateral hearing loss, to include as secondary to the removal of a mass from the neck. 4. Entitlement to service connection for vertigo, as secondary to the removal of a mass from the neck. 5. Entitlement to service connection for dry mouth, as secondary to the removal of a mass from the neck. 6. Entitlement to service connection for skin nerve damage, as secondary to the removal of a mass from the neck. 7. Entitlement to service connection for tissue damage, as secondary to the removal of a mass from the neck. 8. Entitlement to service connection for a right lung nodule. 9. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 10. Entitlement to service connection for a right shoulder disorder. 11. Entitlement to service connection for a right elbow disorder. 12. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: James M. McElfresh, II, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active duty service from August 1969 to July 1971 followed by over 20 years of service with the National Guard. This case comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In March 2014, the Veteran testified at a Board hearing by videoconference. At that time, he submitted additional evidence with a waiver of RO review. The record was held open for 60 days following the hearing to provide additional time to submit evidence. The day following the hearing, the Veteran submitted additional evidence. While the disability regarding the residuals of the removal of a mass was described as stemming from the back of the skull, review of the medical evidence shows that the mass actually originated from the neck. Thus, the disability has been modified accordingly. At the hearing, the Veteran raised the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a neck disorder. As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In this decision, the Board grants service connection for tinnitus and peripheral neuropathy of the left upper extremity and denies service connection for tissue damage, as secondary to the removal of a mass from the neck. The remaining issues are REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving the benefit of the doubt in the Veteran's favor, his tinnitus had its onset in active service. 2. Resolving the benefit of the doubt in the Veteran's favor, he has peripheral neuropathy of the left upper extremity involving the median nerve that had its onset in active service. 3. The Veteran does not have any tissue damage secondary to the removal of a mass from the neck. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for peripheral neuropathy of the left upper extremity involving the median nerve are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. The criteria for service connection for tissue damage, as secondary to the removal of a mass from the neck, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). Proper notice must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable decision on the claims for service connection for tinnitus and peripheral neuropathy of the left upper extremity, no further discussion of the duties to notify and assist is needed. With respect to the claim for service connection for tissue damage, as secondary to the removal of a mass from the neck, neither the Veteran nor representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). A September 2012 letter notified the Veteran of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. The letter also notified the Veteran of how VA determines disability ratings and effective dates if service connection is awarded. Thus, the letter addressed all notice elements and predated the initial adjudication by the RO in December 2012. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA and private treatment and examination. The Board notes that the records of the surgery to remove the mass from the neck are no longer available. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. Although an examination or opinion was not obtained in connection with the claim for service connection for tissue damage, the Board finds that VA was not under an obligation to provide one, as such is not necessary to make a decision on the claim, for the reasons discussed below. In determining whether the duty to assist requires that a VA medical examination be provided or a medical opinion obtained, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014). In this case, the record is absent any evidence of tissue damage as a result of the removal of the mass from the neck. At the Board hearing, the Veteran testified that there was no loss of muscle tissue associated with the removal of the mass. Without evidence of the claimed disorder, a medical examination or opinion is not needed. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). Service connection may be also granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active military, naval, or air service includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) (West 2014); 38 C.F.R. § 3.6(a) (2014). Tinnitus The Veteran claims that he has tinnitus due to loud noise exposure in service. His active duty service separation form shows that he served as a wrecker operator with a maintenance battalion of the Infantry Division. Thus, exposure to loud noise in service is conceded. At an October 2012 VA examination, the Veteran reported that he has had tinnitus since active duty service when an M14 was fired near his right ear. In a December 2012 addendum, the examiner opined that the tinnitus was not caused by active duty service. The examiner noted that the tinnitus was related to hearing loss, which started after active duty service and was not related to such service. At the Board hearing, the Veteran testified that he has had tinnitus since 1969 when an M14 was fired nearby. The Board notes that a lay person is competent to give evidence about observable symptoms such as tinnitus. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board finds credible the Veteran's assertions of having tinnitus since active service. Thus, the Veteran's statements establish continuous and chronic symptoms such as to enable a grant of service connection for tinnitus. The Board acknowledges the VA examiner's opinion that the Veteran's tinnitus is not related to active duty service. While that opinion is a medical conclusion which the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Veteran, as a lay person, is competent to testify as to the onset of his tinnitus. In this regard, the Board emphasizes that tinnitus is a completely subjective condition. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that his tinnitus had its onset in active service. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for tinnitus is warranted. Peripheral Neuropathy of the Left Upper Extremity The Veteran claims that he has peripheral neuropathy of the left upper extremity due to a blood draw during National Guard service. In a July 1992 letter, a private physician reported the Veteran's history of persistent numbness and tingling in the left thumb and index and long fingers following a venipuncture of the left elbow. The physician noted that examination revealed tenderness over the median nerve, a positive Tinel's sign, and hypesthesia in the distribution of the median nerve. The physician opined that the Veteran had an injury to the median nerve which was causing chronic neuritis of that nerve. September 1992 statements from fellow servicemen show that the Veteran had a swollen bruise on the arm after an April 1992 blood draw and that the blood had been drawn from an unusual place very near the elbow. A November 1992 statement of medical examination and duty status noted that a nerve in the Veteran's arm was penetrated by a needle used to draw blood in April 1992 while on INACDUTRA, and the injury was incurred in the line of duty. At an October 2012 VA examination, the examiner noted a history of a left ulnar nerve injury as a result of a blood test in the National Guard with subsequent pain, numbness, and weakness of the left arm and hand. The examiner noted symptoms attributable to peripheral neuropathy of the left upper extremity, including constant pain, intermittent pain, and numbness. Examination revealed slightly decreased strength in the left upper extremity and a positive Tinel's sign, the latter specific to median nerve abnormality. However, the examiner indicated that there was no peripheral neuropathy of the left upper extremity. The examiner stated that the findings were not consistent with an ulnar nerve neuropathy and that a blood draw is not done near the ulnar nerve. The examiner then opined that the condition was not incurred in or caused by the in-service injury. The examiner explained that the mechanism of injury is inconsistent with injury to the ulnar nerve as the needle would have to pass through the bone during a blood draw to reach the nerve. Given the above, the record shows that the Veteran suffered an injury to the left arm during a blood draw during a period of INACDUTRA. The question is whether that injury resulted in his current peripheral neuropathy of the left upper extremity. The Board acknowledges the VA examiner's opinion that the Veteran does not have peripheral neuropathy of the left upper extremity. However, the examiner indicated that the Veteran had symptoms of peripheral neuropathy, and examination revealed decreased strength and a positive Tinel's sign, the latter specific to abnormality of the Veteran's median nerve. While the examination regrettably focused on the injury to the ulnar nerve, the examination nevertheless revealed symptoms and findings indicative of peripheral neuropathy involving the median nerve. Moreover, in July 1992, shortly after the blood draw, a physician found tenderness over the median nerve, a positive Tinel's sign, and hypesthesia in the distribution of the median nerve, and opined that the Veteran had an injury to the median nerve due to the blood draw. Furthermore, as a lay person is competent to give evidence about observable symptoms such as pain, numbness, and weakness, the Board finds credible the Veteran's assertions of having those symptoms since the blood draw during INACDUTRA. Layno v. Brown, 6 Vet. App. 465 (1994). Resolving the benefit of the doubt in the Veteran's favor, the Board finds that he has peripheral neuropathy of the left upper extremity involving the median nerve that had its onset in active service. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for peripheral neuropathy of the left upper extremity involving the median nerve is warranted. Tissue Damage Although the Veteran has perfected an appeal of the claim for service connection for tissue damage, as secondary to the removal of a mass from the neck, the record fails to indicate that he has any tissue damage as a result of the surgery. The medical evidence is absent any indication of tissue damage as a result of the surgery to remove the mass from the neck. There are simply no abnormal findings on examination pertinent to this claim. At the Board hearing, the Veteran testified that while nerves were severed during the surgery to remove the mass, there was no loss of muscle tissue. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110, 1131 (West 2014). In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the preponderance of the evidence is against a finding that the Veteran has tissue damage as a result of the surgery to remove the mass from the neck. As there is no disability that can be related to service, the claim for service connection for tissue damage, as secondary to the removal of a mass from the neck, must be denied. In conclusion, service connection for tissue damage, as secondary to the removal of a mass from the neck, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. Service connection for peripheral neuropathy of the left upper extremity involving the median nerve is granted. Service connection for tissue damage, as secondary to the removal of a mass from the neck, is denied. REMAND The Veteran claims that he developed a mass in his neck as a result of exposure to ionizing radiation and various chemicals during National Guard service. He seeks service connection for the residuals of the removal of the mass and the secondary conditions of bilateral hearing loss, vertigo, dry mouth, and skin nerve damage. February 1986 service personnel records from the National Guard show that the Veteran was assigned to chemical/radiological survey and monitoring, and decontamination teams. A June 1999 letter from a private physician noted that the Veteran had a growth that originated in the upper neck and extended into the soft palate and, while almost all of these types of growths are benign, they do need to be removed. The physician noted that this type of procedure was not commonly done and thus recommended a specialist at a university medical center. In a February 2012 treatment record, a private physician stated that a review of the records from the surgery indicated that the Veteran had a right palatine growth that was a benign cavernous hemangioma and was removed without complications. The physician noted that the Veteran subsequently developed positional vertigo. In a February 2014 treatment record, the same private physician stated that the Veteran had a hemangioma that was probably due to exposure to radiation and chemicals, and the treatment for the hemangioma contributed to the vertigo and hearing loss. The physician noted that the Veteran's hearing loss was also due to noise exposure in service. While the private physician did not provide an adequate rationale for the favorable opinions, the physician nevertheless indicated that the Veteran's mass in the neck, diagnosed as a hemangioma, was related to service and the hearing loss, vertigo, and dry mouth were due to the surgery to remove the hemangioma. Thus, the Veteran should be afforded a VA examination to obtain an opinion on the matters. While there is no medical evidence of skin nerve damage, the Veteran testified that the right side of his face was numb. The Veteran is competent to give evidence about observable symptoms such as numbness. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, an opinion on any skin nerve damage found on examination should also be obtained. Specific to the Veteran's bilateral hearing loss, the record indicates that his hearing loss was detected during National Guard service. A November 1994 examination report completed during National Guard service reflects the examiner's opinion that the Veteran's bilateral hearing loss was related to firearm sounds. However, reports of medical history completed during National Guard service show that the Veteran worked in construction in July 1975, as an equipment operator in July 1984, in road maintenance in March 1988, and as an equipment operator in November 1994. There is no indication that the service examiner considered that work history. Post service, an October 2012 VA examination report reflects the examiner's opinion that the Veteran's hearing loss was caused by or a result of noise exposure in the National Guard. While that examiner considered the Veteran's work history, the history reported at the examination was that of only occasional noise exposure as a road inspector. Thus, while the record contains favorable opinions on the Veteran's hearing loss, those opinions were not based on an accurate account of the Veteran's post-service occupational noise exposure. Thus, the October 2012 VA examiner should be asked to provide an addendum that addresses the above. The Veteran also claims that he developed a lung nodule as a result of exposure to ionizing radiation and various chemicals during National Guard service. While the record is unclear as to whether the nodule results in any disability, the record is also unclear as to what it is. January 2012 VA x-rays found a nodule in the right upper lung that was interpreted as possibly representing a calcified granuloma or bone island but a pulmonary nodule could not be ruled out. Correlation with prior x-rays or follow-up x-rays in three months was recommended. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of the right lung nodule. The Veteran also claims that he has right shoulder, right elbow, and low back disorders due to lifting supplies in service, particularly artillery shells. His report of separation from the National Guard shows that he served as a supply specialist. As he is considered competent to give evidence about observable symptoms such as pain, the record contains competent lay evidence of persistent or recurrent symptoms of disability. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, he should also be afforded a VA examination to determine the nature and etiology of any disorder of the right shoulder, right elbow, and low back. Prior to the examinations, any outstanding VA medical records should be obtained. The record, including the Veteran's Virtual VA electronic claims file, contains VA treatment notes through January 2012. Thus, any treatment notes since that time should be obtained. The record also indicates that the Veteran underwent an Ionizing Radiation Registry Examination in January 2012. While diagnostic test results from the examination are of record, the report of the examination itself is not. Thus, the report of the Ionizing Radiation Registry Examination should be obtained. Lastly, as the Veteran's service personnel records from the National Guard may shed light on any exposure to ionizing radiation and chemicals, a request for them should be made to VA's Records Management Center (RMC) and the National Personnel Records Center (NPRC). Verification of his periods of ACDUTRA should also be requested. Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records since January 2012, to include the report of a January 2012 Ionizing Radiation Registry Examination. 2. Contact the RMC and NPRC and request the Veteran's service personnel records from National Guard service. Also request verification of his periods of ACDUTRA. 3. Then, schedule the Veteran for a VA examination to ascertain the nature and etiology of the mass in the neck, diagnosed as a hemangioma. The examiner should review the claims file and note that review in the report. All indicated tests and studies should be performed. The examiner should identify all residuals of the surgery to remove the hemangioma. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the hemangioma had its onset in or is related to any verified period of ACDUTRA, to include any exposure to ionizing radiation or chemicals. If so, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the hearing loss, vertigo, dry mouth, and facial nerve damage are due to the surgery to remove the hemangioma. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology since National Guard service. The examiner should provide a complete rationale for all conclusions. 4. Arrange for the Veteran's claims file to be reviewed by the examiner who conducted the October 2012 VA audiology examination for an addendum. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss was incurred in or aggravated (worsened beyond the natural progress of the disease) by any verified period of ACDUTRA. The examiner should address the Veteran's service treatment records showing his work history in construction and road maintenance, and the November 1992 opinion that the hearing loss was related to firearm sounds. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology since National Guard service. The examiner should provide a complete rationale for all conclusions. 5. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the right lung nodule. The examiner should review the claims file and note that review in the report. All indicated tests and studies should be performed. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the right lung nodule had its onset in or is related to any verified period of ACDUTRA, to include any exposure to ionizing radiation or chemicals. The examiner should consider the January 2012 VA x-rays showing a nodule in the right upper lung that was interpreted as possibly representing a calcified granuloma or bone island but a pulmonary nodule could not be ruled out. The examiner should consider the Veteran's work history in construction and road maintenance. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology since National Guard service. The examiner should provide a complete rationale for all conclusions. 6. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any disorder of the right shoulder, right elbow, and low back. The examiner should review the claims file and note that review in the report. All indicated tests and studies should be performed. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any right shoulder, right elbow, or low back disorder had its onset in or is related to any verified period of ACDUTRA, to include the Veteran's duties as a supply specialist. The examiner should consider the Veteran's work history in construction and road maintenance. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology since National Guard service. The examiner should provide a complete rationale for all conclusions. 7. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for response, and then return the case 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 J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs