Citation Nr: 1605580 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 11-28 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine condition. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active military service from June 1994 to September 1994 and from August 2004 to January 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the RO in Houston, Texas, which denied the Veteran's claims. The rating decision also denied the Veteran's claims of entitlement to service connection for rashes of the bilateral hands and arms; however, the Veteran did not perfect an appeal as to those issues, and they are not before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development of the claims is warranted. As an initial matter, the Board notes that the Veteran identified treatment records in a November 2015 statement that have not been associated with the claims file. Specifically, the Veteran indicated that he had been treated by the Newton Family Clinic Diagnostic Group and the Southeast Texas Ear Nose & Throat LLP. The Veteran attached one document from each treatment facility. The document associated with the treatment for his neck indicated that the Veteran had a presumptive diagnosis of sensory cervical plexus disorder without symptoms or signs of a motor deficit. Additionally, the findings of the electrodiagnostic report showed deviations for average measures ranging from mild to very severe. The record from the Southeast Texas Ear Nose & Throat LLP was an October 2015 audiogram that noted in the remarks section: "tinnitus." The Veteran's statement indicates that there are additional records he is seeking to obtain, as he stated that he was "attempting to gather the official medical records from both offices." As such, the Board finds that these records, along with any other outstanding private and VA treatment records, should be obtained in order to properly consider the claim. 38 U.S.C.A. § 5103A(c) (West 2014); see also Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Turning to the issue of service connection for a neck disability, the Board recognizes that the claim was originally denied because there was no evidence of a current disability connected to the Veteran's period of service. As evidenced by the limited treatment records submitted by the Veteran in November 2015, it appears that the Veteran has been diagnosed with a problem related to his neck or cervical spine, specifically a sensory cervical plexus disorder without symptoms or signs of a motor deficit. The Veteran indicated at his hearing that he believes his neck condition was related to his period of service, when he experienced a "lot of jarring" while driving on unimproved roads with potholes. When asked why he felt his neck disorder should be service connected, the Veteran essentially indicated that the effects of a "car accident" were sometimes felt later. He also indicated that he thought he had been diagnosed with a pinched nerve and was being treated by a VA physician and a private physician. He complained of neck problems that lead to headaches and tension, and he stated that when he raises his voice or laughs, it causes pain in his neck and causes him to lose strength in his arm. He testified that, after service, he used Thera-Gesic cream, ibuprofen, Tylenol, and alternating ice and heat to treat the symptoms. He further reported that he was currently using Gabapentin to treat the pain in his neck. The Veteran stated that he believes his current neck problem is related to the shock from his exposure to Improvised Explosive Device (IED) explosions, heavy lifting, and running that he experienced while was deployed. He, however, denied a specific injury to his neck. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). In a claim for service connection, the duty to provide an examination is triggered where there is competent evidence of a current disability; evidence establishing that an event, injury or disease occurred in service; an indication that the current disability may be associated with the veteran's service; and insufficient competent evidence to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). The Veteran is a combat veteran. His lay testimony that he wore protective gear and he experienced a "lot of jarring" from driving on unimproved roads with potholes and exposure to shocks from IEDs during his service in the Iraq War is consistent with such service. 38 U.S.C.A. § 1154(b). There is medical evidence of record that shows a current disability. The Board will afford the Veteran a VA examination with medical opinion to determine whether the Veteran's current neck disability is related to any incident of service. Finally, with regard to the Veteran's claim of entitlement to service connection for tinnitus, the Board notes that the Veteran has contended that he experienced tinnitus after two in-service IED explosions. During his hearing, the Veteran testified that he escorted the brigade commander around Iraq during his tour of duty. The Veteran reported that he was exposed to noise during weapon training and after he experienced IED explosions. He stated that he thought that the tinnitus began during training. The Veteran reported that his tinnitus is sometimes triggered by background noise or by talking to others if the voices get "too monotone." He also indicated that the tinnitus is caused by loud noises. He reported that it is a constant ringing that "builds up like a pressure" in his ears. Finally, the Veteran's service treatment records indicate that he complained of ringing in his ears in service. The Veteran was provided a VA audiological examination in March 2011 and an addendum opinion was provided in March 2011. The audiological examination showed that the Veteran did not have a bilateral hearing impairment for VA purposes. See 38 C.F.R. § 3.385 (2015). The examiner noted that the Veteran's description of ringing in the ears right after an IED event that subsided was consistent with "normal temporary noise exposure tinnitus" that resolved. The examiner maintained that the occasional ringing that he gets now was consistent with normal spontaneous head noise and less consistent with sensorineural tinnitus. The examiner noted that with normal thresholds and the current description of the occasional ringing a few days a week for 30 to 40 seconds at a time, it was the examiner's opinion that the Veteran's tinnitus was less likely as not caused by or a result of military noise exposure. As noted above, the Veteran submitted an October 2015 audiogram from the Southeast Texas Ear Nose & Throat LLP that notes in the remarks section: "tinnitus." The audiogram also suggests thresholds at 4000 Hertz are 40 decibels or greater in the ears. No nexus opinion is provided. In light of this additional relevant evidence associated with the file after the March 2011 VA examination/opinion, the Board finds that an addendum opinion should be obtained. The Veteran reported during his hearing that he has sought treatment from the Beaumont VA outpatient clinic; therefore, any and all outstanding VA treatment records should be obtained and associated with the file on remand. 38 C.F.R. § 3.159(c)(2) (2015); Bell v. Derwinksi, 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). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant ongoing VA treatment records from any and all VA facilities where the Veteran has received treatment including the Beaumont VA outpatient clinic dated from May 2011 to the present. All efforts to obtain VA records should be fully documented. The VA facility must provide a negative response if records are not available, and notice to the Veteran of inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 2. Contact the Veteran for the appropriate release to obtain any outstanding private treatment records he wants considered as he alluded to in his November 2015 statement. With the Veteran's authorization, the RO/AMC should then obtain the Veteran's 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. 3. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination to determine the etiology of the Veteran's cervical spine condition. The record must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed. All pertinent symptomatology and findings must be reported in detail. The examiner is directed specifically to the lay statements of record as well as any and all private treatment records associated with the file. After reviewing the claims folder, obtaining a history of complaints from the Veteran, and conducting a thorough examination of the Veteran, the examiner is asked to provide an opinion addressing the following question: is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine condition is related to his time in active duty service? In formulating the above opinion, the examiner is advised that the Veteran is a combat veteran, and the examiner is asked to consider and discuss the Veteran's contention that his neck disorder was caused by heavy lifting and from a "lot of jarring" from traveling on unimproved roads and over potholes and exposure to shocks from IEDs while wearing heavy protective gear and a Kevlar helmet. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 4. Obtain an addendum opinion to the March 2011 VA audiological examination and opinion. The file must be made available to the examiner, and the examiner must specify in the report that the file was reviewed. In light of the findings contained in the October 2015 audiogram from the Southeast Texas Ear Nose & Throat and any other relevant medical evidence added to the file since the March 2011 VA examination and opinion, please provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is related to his time in active duty service? All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims of service connection. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).