Citation Nr: 1544352 Decision Date: 10/19/15 Archive Date: 10/29/15 DOCKET NO. 08-08 351 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for right shoulder disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from January 1971 to August 1973. He also subsequent reserve service in the Ohio Army National Guard. These matters come before the Board of Veterans' Appeals (Board) from February 2007 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2015, the Veteran testified at a hearing before the undersigned Veterans' Law Judge. A transcript of that proceeding is of record. The issues of entitlement to service connection for a bilateral hearing loss disability and a right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's current tinnitus is related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim decided herein. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal Criteria Service connection may be granted for 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(a) (2015). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). Tinnitus, as an organic disease of the nervous system, is among diseases recognized by VA as chronic in 38 C.F.R. § 3.309(a) (2015). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2015). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) (2015). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) (2015) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a) (2015). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection for Tinnitus The Veteran claims that his current tinnitus is related to his period of active service, including in-service noise exposure. VA treatment records and VA examination reports indicate the Veteran is diagnosed with tinnitus. Accordingly, the first Shedden element has been demonstrated. With regard to an in-service incurrence, the Veteran reports that he worked as a mechanic and crew chief on the flight line, during which time he was exposed to all types of aircraft noise. He also reported that during his service in Vietnam he was involved in combat flight missions and was exposed machine gun and artillery fire. The Veteran reported that it was during his deployment to Vietnam that he first experienced the ringing in his ears, which continues to present. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds that the Veteran is competent to report what he can perceive through his senses, including in-service noise exposure and tinnitus. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's DD Form 214 indicates that he was awarded an Air Medal with a "V" device. In light of the Veteran's competent and credible lay statements concerning in-service noise exposure and his DD Form 214, which corroborates that he is a combat Veteran, the second Shedden element is met. Concerning the third Shedden element, evidence of a nexus between the Veteran's tinnitus and his in-service noise exposure, the Veteran was provided VA examinations in March 2003, July 2010, and April 2011. While all the examination reports noted that the Veteran had tinnitus, only the July 2010 and April 2011 examiners rendered etiological opinions. Both examiners opined that based on the Veteran's reported history of significant noise exposure during and after military, service it is not possible to determine if the etiology of his tinnitus is related to his military noise exposure without resorting to mere speculation. As neither examiner rendered a conclusive etiological opinion, neither opinion is probative. After a careful review of the record, and resolving any doubt in favor of the Veteran, the Board finds, based upon the medical and satisfactory lay evidence set forth above, that the Veteran's current tinnitus was incurred during active service. The Veteran provided competent and credible statements that his tinnitus first manifested during active service and has continued since that time. See Davidson v. Shinseki, 581 F.3d at 1316 (noting that the absence of a "valid medical opinion" is not an absolute bar to service connection); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptoms). A Veteran's lay statements may be sufficient evidence in any claim for service connection. See 38 U.S.C. § 1154(a) (West 2014) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). The Veteran's competent and credible testimony meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) (2015), as it indicates that his tinnitus is causally related to in-service acoustic trauma. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 C.F.R. § 3.102 (2015). See also 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. REMAND Initially, the Board notes that there may be outstanding relevant treatment records. The Veteran reported that he received treatment for his right shoulder from a Dr. Lee, and submitted some treatment records. While complete treatment records were requested from Dr. Lee of Biltmore Medical Center, the record indicates that this was not the correct Dr. Lee. Specifically, in August 2013, VA received a negative response from Biltmore Medical Center indicating that they were an oncology practice and informing VA that it was looking for a different Dr. Lee. Additionally, the partial records submitted by the Veteran indicated that his treatment was from Dr. Michael T. Lee of Arizona Orthopedic and Sports Medicine Specialists located at Biltmore Medical Mall. Accordingly, on remand complete treatment records from the correct Dr. Lee should be requested. Additionally, the record indicates that there may be outstanding VA treatment records. In a November 2006 and June 2007 correspondences and various VA forms 21-4142, the Veteran indicated that he had received treatment at VA Medical Centers in Phoenix, Arizona; Cleveland, Ohio; Louisville, Kentucky; Knoxville, Tennessee; and New Jersey for various time periods. To date, VA has not requested the Veteran's treatment records from the VA medical centers in Kentucky or New Jersey. Additionally, while negative record request responses were received from the Phoenix, Cleveland, and Knoxville VA Medical Centers for portions of time period identified by the Veteran, a formal finding of unavailability has not been associated with the claims file. Accordingly, on remand all outstanding VA treatment records should be obtained and associated with the claims file. If complete treatment records from any identified VA facility for any period identified by the Veteran are not obtained, a formal finding of unavailability should be associated with the claims file. With regard to the etiology of the Veteran's hearing loss and right shoulder disabilities, the Veteran was provided a VA Joints examination in May 2010 and a VA audiology examination in April 2011. Additionally, an addendum opinion regarding the Veteran's right shoulder disability was obtained in February 2014. After reviewing the examination reports and addendum opinions, the Board finds the nexus opinions of record are inadequate for adjudicating the claims. Concerning the Veteran's hearing loss, in rendering her negative etiological opinion, the April 2011 examiner failed to address the Veteran's February 1972 and August 1978 flight physicals, which documented at least some degree of hearing loss. Moreover, the examiner only addressed whether the Veteran's left ear hearing loss was related to active service, she did not address whether it was related to his subsequent reserve service. The Board acknowledges that there is no medical evidence of a right ear hearing loss disability for VA purposes. However, at his VA hearing, the Veteran testified that because he was required to pass audiological testing to maintain his flight status, he would use inadvertent visual clues from the audiologist to compensate for his hearing loss. He noted that this habit continued after his discharge from active and reserve service; therefore, the examination reports of record do not reflect the true severity of his hearing loss. As the Board must remand the Veteran's hearing loss claim to obtain an adequate nexus opinion concerning his left ear hearing loss, the Veteran should be provided another VA examination to diagnose any right ear hearing loss as well. With regard to the Veteran's right shoulder disability, in rendering his negative etiological opinion the May 2010 examiner only addressed the Veteran's assertions concerning repetitive strain from performing mechanical duties. He did not address the Veteran's assertions regarding injuring his shoulder during a rough combat landing or his assertions regarding injuring his shoulder during his reserve service with the Ohio Army National Guard. Additionally, in opining that the Veteran's right shoulder disability was not related to strain and overuse during the performance of mechanical duties in Vietnam, the examiner opined that there was no evidence of chronicity and continuity of symptomatology. However, the examiner did not acknowledge or address the Veteran's assertions concerning ongoing pain or acknowledge any of the Veteran's documented post-service reports of shoulder pain. While an addendum opinion was obtained in February 2014, it only addressed the May 2010 examiner's misdiagnosis and did not rectify any of the above inadequacies. Accordingly, the examination report and addendum opinion are inadequate for adjudicating the claim, and a remand for an adequate VA examination and opinion is warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records for the Veteran dated from November 2014 to the present. All attempts to obtain these records must be documented in the claims file. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2) (2015), must be entered in the record if it is determined that treatment records from any VA facility identified by the Veteran for the complete time period identified by the Veteran do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c) (2015), and give him an opportunity to respond. 2. Contact the Veteran and request that he submit a properly executed and separate VA form 21-4142 for any private treatment for the disabilities on appeal, to include any employer hearing evaluations and complete records from Dr. Michael T. Lee of Arizona Orthopedic and Sports Medicine Specialists located at Biltmore Medical Mall. Upon receipt of such, VA must try twice to obtain any private records identified unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained the claim may be readjudicated. 3. To the extent possible, request verification of the dates the Veteran served in the Reserves, to include the dates for any period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) that he attended. Service records providing retirement points are usually not helpful in this regard. The AOJ should prepare a summary of such dates. All efforts to obtain these records should be fully documented. All efforts to obtain these records should be fully documented. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2) (2015), must be entered in the record if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c) (2015), and give him an opportunity to respond. 4. Thereafter, schedule the Veteran for a VA audiological examination to determine the etiology of his bilateral hearing loss. The claims file and a copy of this remand must be reviewed by the examiner. The examiner should address the following: a. State whether it is at least as likely as not (50 percent or greater degree of probability) that any diagnosed right or left hearing loss disability began in service, was caused by service, or is otherwise related to service, to include in-service noise exposure. b. State whether it is at least as likely as not (50 percent or greater degree of probability) that that any diagnosed right or left hearing loss disability is related to a disease or injury incurred in active duty for training (ACDUTRA). c. State whether it is at least as likely as not (50 percent or greater degree of probability) that that any diagnosed right or left hearing loss disability is related to an injury incurred in inactive duty training (INACDUTRA) (the Board notes that only injuries, and not diseases, are recognized under 38 U.S.C.A. § 101(24) (West 2014) as the basis for establishing service-connection related to periods of INACDUTRA). In rendering the above requested opinions, the examiner should address the lay statements concerning in-service and post-service audiological symptoms, as well Veteran's February 1972 and August 1978 flight physicals. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner must provide complete rationales for all conclusions reached. 5. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any right shoulder disability. The claims file and a copy of this remand must be reviewed by the examiner. The examiner should address the following: a. State whether it is at least as likely as not (50 percent or greater degree of probability) that any diagnosed right shoulder disability began in service, was caused by service, or is otherwise related to service. In so opining, the examiner should address the Veteran's assertions regarding an in-service right shoulder injury during a combat landing and in-service strain from performing mechanical work on helicopters, and the September 2007 letter from M. R. regarding the Veteran's in-service shoulder injury. b. State whether it is at least as likely as not (50 percent or greater degree of probability) that that any diagnosed right shoulder disability is related to a disease or injury incurred in active duty for training (ACDUTRA). c. State whether it is at least as likely as not (50 percent or greater degree of probability) that that any diagnosed right shoulder disability is related to an injury incurred in inactive duty training (INACDUTRA) (the Board notes that only injuries, and not diseases, are recognized under 38 U.S.C.A. § 101(24) (West 2014) as the basis for establishing service-connection related to periods of INACDUTRA). In rendering the above requested opinions, the examiner should address the Veteran's assertions in his March 2007 notice of disagreement concerning injuring his shoulder during reserve service. 6. Finally, readjudicate the claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, if warranted, return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs