Citation Nr: 1536078 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 13-28 174A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right knee disorder, to include chondromalacia of the left knee with arthritis. 3. Entitlement to service connection for a left knee disorder, to include chondromalacia of the right knee with arthritis. 4. Entitlement to a right shoulder disorder, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1982 to October 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran filed a timely Notice of Disagreement (NOD) in May 2013 and the RO issued a Statement of the Case (SOC) in October 2013. The Veteran filed a timely VA Form 9, Substantive Appeal, in October 2013. In June 2015, the Veteran testified at a Board video hearing over which the undersigned Veterans Law Judge presided, and the transcript of that hearing has been associated with the claims file. In June 2015, the Veteran submitted additional evidence in support of his claims. This submission was accompanied by a waiver RO consideration. See 38 C.F.R. § 20.1304 (2015). The issues of chondromalacia of the left knee with arthritis, chondromalacia of the right knee with arthritis, and arthritis of the right shoulder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As the Board's decision to grant the Veteran's claim of entitlement to service connection for tinnitus, are completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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; 38 C.F.R. §3.102; 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. The Veteran seeks service connection for tinnitus on a direct basis; he contends his tinnitus is a result of his noise exposure during service. The Veteran has reported that he was exposed to loud noise and acoustic trauma while he worked as an aviation specialist. He stated during his June 2015 hearing that this noise exposure included the flight line, airplane maintenance, and being aboard aircraft carriers. The Board finds that the noise exposure described by the Veteran is consistent with the duties and circumstances of his military occupational specialty of an aviation specialist. Therefore, the Board finds that in-service acoustic trauma is established. 38 U.S.C.A. § 1154 (West 2014). The Veteran's service treatment records are absent any complaints or diagnoses of problems with the Veteran's ears or hearing, and no ear, nose, or throat trouble and no ear problems were noted on examination during service or at separation in October 1985. The Veteran was provided an audiological examination in conjunction with his claim of service connection for tinnitus in March 2013. The Veteran reported bilateral, intermittent ringing that occurs at least once a week and varies in duration. He reported that he feels that the tinnitus sometimes distracts from his hearing. The examiner was not provided the claims file for review, and ultimately determined that she could not opine as to the etiology of the tinnitus without the claims file. An addendum opinion was offered by the same VA examiner in March 2013. She opined that the Veteran's enlistment and separation examinations indicated that the Veteran's hearing was within normal limits and there was no threshold shift noted. She further indicated that the Veteran reported that the onset of his tinnitus began four or five years ago. She also noted that tinnitus was not mentioned in the claims file. Therefore, she opined that it is less likely that the current tinnitus is related to military service. In his October 2013 VA Form 9, Substantive Appeal, the Veteran stated that he did not know what tinnitus was during the military, and that the military did not ask him about it or explain what it was, so he had no opportunity to disclose that information. He also stated that he believes that his acoustic trauma from jet aircraft for almost four years caused his tinnitus. The Veteran testified at his June 2015 hearing that he began having trouble with his ears in service, and that he was diagnosed with ear infections during that time. He stated that he would feel like his ears were "running" and "ringing" and that he would use a Q-tip to try and alleviate the symptoms. He also said that after he was discharged, he continued to seek treatment for the symptoms, and he was advised to use a water solution to clean his ears. He was also prescribed medication for ear infections. He stated that his private treating physicians did not determine what the ringing was, but thought it may be related to an ear infection. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on the onset and duration of ringing in the ears. A lay person is competent to provide an opinion on the presence of recurrent ringing in the ears since service as the symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran testified that he experienced ringing in his ears in service and that he experienced such ringing ever since service, and finding that the veteran was competent to so testify because ringing in the ears was capable of lay observation). The VA examiner who found that the Veteran's tinnitus is not related to service did not indicate that the Veteran's description of his symptoms was inconsistent with the disorder tinnitus. The Veteran has stated that he has experienced tinnitus since service; specifically, he said that it began when he experienced other symptoms in his ears. He also competently and credibly reported post-service treatment for the same issue. Given the Veteran's testimony and the Veteran's service and duties as an aviation specialist, the Board finds the Veteran's statements regarding the ringing in his ears to be competent and credible. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for tinnitus is granted. REMAND While further delay is regrettable, the Board observes that additional development is required prior to adjudicating the Veteran's claims of entitlement to service connection for chondromalacia of the left knee with arthritis, chondromalacia of the right knee with arthritis, and arthritis of the right shoulder. As an initial matter, the Veteran stated during his June 2015 Board hearing that he began seeking private treatment for his conditions approximately one year after service. However, the records from these private treating physicians are not associated with the file. Therefore, efforts should be taken to identify and associate these records with the file; additionally, all ongoing private treatment records should also be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2014). Additionally, the RO should ensure that any and all VA treatment records are associated with the file. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board recognizes that the Veteran was afforded a VA examination in conjunction with the claims of service connection for a left knee disorder, a right knee disorder, and a right shoulder disorder in March 2013. During the shoulder examination, the examiner diagnosed the Veteran with right shoulder arthritis. The examiner noted the Veteran injured his right shoulder in service while playing basketball. Specifically, the examiner indicated that the Veteran "fell hard" on his right shoulder. The examiner noted that the Veteran was diagnosed with right shoulder bursitis and contusion at that time. He was treated with rest and profile for a while, and was back to duty in a "couple" of days. The examiner indicated that the Veteran was diagnosed with shoulder arthritis in the late 2000's. The Veteran described daily shoulder pain that is 8 in severity out of 10. He stated that it is worse after overuse and when the weather is cold, and it is better when he rests, avoid activities, and uses heat, prescriptions and chiropractor care. Diagnostic testing was performed and degenerative arthritis was found in the right acromioclavicular joint with both superior and inferior spurring, with no other significant osseous abnormalities identified. With regard to the bilateral knees, the examiner diagnosed the Veteran with bilateral knee chondromalacia, and indicated that the onset occurred in 1988. The examiner also noted that the Veteran has arthritis and meniscal tear, which was diagnosed in the late 2000's. The Veteran stated that he was treated for chondromalacia in his bilateral knees in service. He reported that he was treated with rest, prescriptions, and wraps. The examiner noted that the Veteran's rest was "self-limited" and he was back to full duty. Since service, the Veteran has had progressive symptoms. He was told he has arthritis within the last 5 years. He stated that he had an acute worsening of his right knee in 2012, which was found to be a meniscal tear, and he had arthroscopic surgery last year. He reported daily, constant, and moderately severe pain in his knees. He stated that his right knee is slightly worse. He also reported that the pain is worse from prolonged standing, walking, or sitting and is alleviated by rest, heat, lying down, and prescriptions. The examiner provided the opinion that it is less likely than not that the Veteran's left knee chondromalacia with arthritis, right knee chondromalacia with arthritis, or right shoulder arthritis was incurred in or caused by the claimed in-service injury, even, or illness. By way of rationale, the examiner stated that the service medical records show limited conditions without residuals and that the separation physical confirms a lack of residuals. Additionally, he reasoned that it was not until decades later that the Veteran's current conditions started and were diagnosed. And finally, he stated that the current knee and shoulder conditions are most likely due to aging and the physical nature of his post-service occupations. In September 2013, an examiner provided an addendum opinion regarding the Veteran's bilateral knee conditions. The examiner reviewed the relevant service treatment records and discussed the Veteran's injury history with the Veteran. The examiner stated that the Veteran's chondromalacia patella appears to have resolved after several weeks of treatment, and the Veteran returned to full duty with no restrictions. The examiner indicated that there were no additional complaints of any knee disorders in the service treatment records. Additionally, the examiner stated that the Veteran's history since 2000 is consistent with a newer injury. Further, he stated that there is a more than 20 year gap between the current knee disorders and the original knee disorder. Therefore, he opined that it is less likely than not that the current disorders are related to the "self-limited" disorder that was diagnosed during active duty service. In October 2013, the Veteran submitted a statement with his Substantive Appeal in which he stated that the examiner did not review the evidence he brought with him, did not ask for information concerning his active duty injuries, and cut the Veteran off when he tried to discuss the injuries. During his June 2015 hearing, the Veteran discussed his knee injuries, which he stated resulted in bed rest, wraps for his knees, and treatment with ibuprofen. The Veteran stated that he sought private treatment for his knees approximately one year after service. He stated that he has continued to seek private treatment and that through the years, he has been recommended to get a partial knee replacement. With regard to his shoulder, the Veteran noted that his first shoulder injury occurred when he was working on an F-18 and attempted to hold a flap up and it landed on his shoulder. He stated that he thought it was only a "bad bruise" but that the next day he could not move his arm. He stated that he went to sick call and he was given wraps and told to soak the arm in Bengay. He stated that he reinjured it a couple of weeks later while he was playing football; he again went to sick call. They told that it was not broken, but they noted it might be a torn rotator cuff. Additionally, the Veteran testified that he sought private treatment for his right shoulder post-service, and that he was treated with medication and shots. Private treatment records indicate that the Veteran has sought treatment for his bilateral knee condition, and the records show diagnoses of osteoarthritis, a lateral meniscal tear, as well as moderate chondromalacia changes. The records indicate that he underwent a left knee debridement of a lateral meniscal tear and debridement of chondromalacia. Here, the examiner who provided the examinations and opinions regarding the Veteran's bilateral knee disabilities and right shoulder disability did not provide an adequate rationale for the etiology opinions. As noted, the Veteran stated at his June 2015 hearing that he sought treatment as early as one year after his discharge. Additionally, the Veteran provided testimony regarding the onset and history of his conditions and treatment, none of which was discussed by the examiner in the opinions. Therefore, a remand is warranted to accord the examiner an opportunity to consider the Veteran's lay accounts and any additional private records that may presently exist. After requesting and associating all private treatment records with the file, the RO should obtain an addendum etiology opinion that considers the Veteran's lay accounts and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran for the appropriate release to obtain any outstanding private treatment records, including those he referenced at his June 2015 Board hearing. With the Veteran's authorization, the RO/AMC should then obtain the Veteran's recent private treatment records. If no additional records are located, the Veteran must be notified and a written statement to that effect should be requested for incorporation into the record. The RO should also obtain any outstanding VA treatment records. All efforts to obtain these records must be documented in the claims file. 2. After all outstanding records have been associated with the claims file; the Veteran should be afforded a VA joints examination regarding the nature and etiology of any disorder of the left knee, right knee, and right shoulder that the Veteran's now has, to specifically include left knee chondromalacia with arthritis, right knee chondromalacia with arthritis, and right shoulder arthritis. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary studies or tests are to be accomplished (with all findings made available to the examiner), and all clinical findings should be reported in detail. The examiner is requested to provide an opinion as to as to the following questions: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a left knee disorder, to include chondromalacia with arthritis, was manifested in service or is otherwise medically related to service, to include the injury he sustained therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a right knee disorder, to include chondromalacia with arthritis, was manifested in service or is otherwise medically related to service, to include the injury he sustained therein? (c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that a right shoulder disorder, to include arthritis was manifested in service or is otherwise medically related to service, to include the injury he sustained therein? A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particular of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Thereafter, readjudicate the claims of service connection for left knee disorder, a right knee disorder, and a right shoulder disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs