Citation Nr: 1615903 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 13-21 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of a right wrist extensor strain, to include tendonitis. 4. Entitlement to service connection for a low back strain. 5. Entitlement to service connection for skin disease with ulceration of the posterior scalp. 6. Entitlement to service connection for residuals of a contusion of the left shin. 7. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the Navy from March 1999 to December 2005, and he was released to the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified at a September 2014 hearing before the undersigned Veterans Law Judge (VLJ) sitting in Honolulu, Hawaii. A transcript thereof is of record. At the hearing the Veteran submitted additional evidence along with a written waiver of initial RO consideration thereof. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file. Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. The issues of service connection for bilateral hearing loss; tinnitus; residuals of a right wrist extensor strain, to include tendonitis; a low back strain; skin disease with ulceration of the posterior scalp; and for residuals of a contusion of the left shin are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT The evidence fails to show that the Veteran has hemorrhoids which are due to service. CONCLUSION OF LAW The criteria for service connection for hemorrhoids are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to the August 2010 rating decision which is appealed, by letter in February 2010, as to all of the claims for service connection now on appeal, the RO satisfied its duty under the Veterans Claims Assistance Act of 2000 (VCAA) to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, he was notified of the information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and that which he was to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. It also notified him of the way initial disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist with respect to the claim for service connection for hemorrhoids, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation, as required by 38 U.S.C.A. § 5103A. The service treatment records (STRs) are on file. The Veteran has not reported having had any postservice treatment for hemorrhoids. The February 2010 VCAA letter noted that the Veteran had submitted a November 2009 letter from Dr. T. D. S. K., of the Kaiser Permanente Mapunapuna Clinic stated that based on a physical examination of November 10, 2009, the Veteran had nerve damage along the right thumb and palm which was related to an inservice injury. The February 2010 VCAA letter also requested that he execute and return the necessary authorization form to allow VA to obtain these relevant private medical records. Thus, as to the possibility that such records might pertain to hemorrhoids, there is nothing, including no testimony, that these or any other records are relevant or outstanding with respect to the claim for service connection for hemorrhoids. 38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The travel Board hearing focused on the elements necessary for claim substantiation as to the other service connection claims on appeal but there was no testimony rendered as to the claim for service connection for hemorrhoids. Nevertheless, the service representative and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. Also, it has not been alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). While assistance is required, 38 C.F.R. § 3.103(c)(2) does not require that one presiding at a hearing pre-adjudicate a claim. Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam). Although at the travel Board hearing it was requested that the Veteran be afforded VA examinations as to his other claims for service connection, no such request was made as to the claim for service connection for hemorrhoids. Moreover, there is no inservice or postservice clinical evidence of treatment, evaluation, complaints or history of hemorrhoids. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon, Id., are not met in this case. Accordingly, the RO has taken the appropriate steps to fulfill the duty to assist and the Board concludes that there has been full VCAA compliance. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007). Background The STRs are negative for the presence of hemorrhoids. No hemorrhoids were found on the December 2005 examination for service separation and on the March 2003 examination. The Veteran's anus was reported to be normal. In an adjunct medical history questionnaire dated in December 2005, the Veteran denied having a history of, or currently having hemorrhoids or blood from the rectum. In the Veteran's initial claim for service connection in December 2009 the Veteran claimed service connection for hemorrhoids, indicating that hemorrhoids began in December 2005. With respect to sources of treatment, he cited the STRS. Law and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis The preponderance of evidence in this case shows that the Veteran did not have a history of having hemorrhoids in service. The Board finds that the Veteran's statements concerning not having a history of hemorrhoids in service are more credible than his assertion years after service that he has had hemorrhoids which began in service. His statement in service was made contemporaneous to service and was consistent with the physical findings in service showing that he had a normal anus. Additionally, there is no evidence showing that the Veteran currently has hemorrhoids which is due to service. Consequently, the Board finds that the evidence weighs against the claim and therefore, the claim must be denied. ORDER Service connection for hemorrhoids is denied. REMAND Bilateral Hearing Loss and Tinnitus At the September 2014 travel Board hearing the Veteran testified that he had served on the flight deck of the USS Kitty Hawk for three years as a corpsman and was exposed to acoustic trauma from aircraft. Page 3 of that transcript. He sometimes was on the flight deck for 16 to 18 hours at a time and even though he used double protection, i.e., ear plugs and ear pieces, he noticed that his hearing acuity was adversely impacted and he developed tinnitus, both of which have continued unabated since then. Pages 5 through 7, and 17 through 19. He had noticed having had difficulty discerning speech, which continued into his present occupation as an information technologist helping people over the telephone. Page 7. Submitted at the hearing were copies of inservice audiograms of August 2004 and November 2005, as well as an audiogram (apparently conducted while in the reserves) in January 2013. The August 2004 and January 2013 audiograms reflect comparison of audiometric test results in March 1999 and, as the Veteran testified, reflect a downward shift in his hearing acuity. Pages 8 through 11. (Parenthetically, none of the audiograms during service reflect the results of speech discrimination testing.) At the hearing the Veteran was informed that his claim for service connection for bilateral hearing loss was denied because puretone threshold testing did not yield findings which demonstrated a hearing loss in either ear by VA standards. Page 13. (See 38 C.F.R. § 3.385). The service representative stated that although the puretone thresholds shown on the indicated audiometric testing did not demonstrate a hearing loss by VA standards, the Veteran's concern was with speech discrimination and, so, in light of the evidence of a downward shift in puretone thresholds during service, a VA examination was requested to ascertain whether he now had a hearing loss by VA standards based on either puretone thresholds or based on speech discrimination. Page 14. The service representative indicated that during inservice audiometric testing of speech recognition the Veteran, as with other veterans, was told to guess during such testing. Pages 14 and 15. [However, again as noted the STRs do not reflect the results of any speech discrimination testing.] The Veteran testified that he had not been provided with a VA audiology examination. Page 16. Pertinently, the STRs include a medical history questionnaire in April 2004 which reflects that the Veteran reported not current having any difficulty hearing. Residuals of a Right Wrist Extensor Strain, to include Tendonitis In January 2003, the Veteran had surgical closure of a laceration over the right thenar eminence. An August 2005 STR shows that the Veteran had been treated for a right "forearm/wrist extensor strain/tendonitis" status post carrying a heavy object in February 2004 and still complained of intermittent pain. A November 2009 letter from Dr. T. D. S. K., of the Kaiser Permanente Mapunapuna Clinic stated that based on a physical examination of November 10, 2009, the Veteran had nerve damage along the right thumb and palm which was related to an inservice injury. It was stated that further testing, including nerve conduction studies were needed. The February 2010 VCAA letter noted that the Veteran had submitted this letter and requested that he execute and return the necessary authorization form to allow VA to obtain these relevant private medical records. However, this was not done. In this regard, the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence). A VA examination in August 2010 yielded a diagnosis of a laceration over the right thenar eminence involving the thenar muscle. It was stated that this affected his ability to use a screw driver and carrying things, including activities of daily living of doing chores and exercise. This most likely caused weakness of the thenar muscle. No electrodiagnostic testing was done. The August 2010 rating decision granted service connection for residuals of a laceration over the right thenar eminence, involving the thenar muscle with scar and assigned an initial 10 percent disability rating under 38 C.F.R. § 4.73, Diagnostic Code 5309, Muscle Group IX (9). That Diagnostic Code provides that function of this muscle group is of the forearm muscles which act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The intrinsic muscles of the hand: the thenar eminence; short flexor, opponens, abductor and adductor of the thumb; hypothenar eminence; short flexor, opponens and abductor of the little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei. A Note to Diagnostic Code 5309 provides that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bone, joints, tendons, etc. The rating is based on limitation of motion, with a minimum of 10 percent. In turn, 38 C.F.R. § 4.71a, Diagnostic Code 5215 provides that limitation of motion of a wrist, of either the dominant or non-dominant upper extremity, warrants a 10 percent rating when dorsiflexion is less than 15 degrees or if palmar flexion is limited in line with the forearm. No higher schedular rating is provided for impairment of the wrist in the absence of ankylosis under 38 C.F.R. § 4.71a, Diagnostic Code 5214. At the travel Board hearing the Veteran testified the when he sustained his right forearm laceration on the USS Kitty Hawk in 2004 he had also sustained a right forearm and wrist extensor strain, including tendonitis. Page 20. He had had to continue working during service lifting casualties and after his initial surgery he was only given Motrin. Page 22. He now had a problem that involved the "outside" of that wrist. Page 21. He could not hold more than 10 pounds in his right hand but had not received any postservice treatment. Page 24. He was willing to attend an additional VA examination in conjunction with his current claim. Page 25. In substance, the Veteran believes that the current 10 percent rating does not encompass all aspects of disability resulting from his laceration of the right thenar eminence. He testified that range of motion of the right wrist was affected and that he had trouble typing and tying his shoe laces. Pages 27 and 28. Low Back Strain At the travel Board hearing the Veteran testified that he injured his low back on the USS Kitty Hawk in January 2004 while lifting casualties during "Medevac" operations, at which time he had muscle spasm which was treated with Motrin. Page 29. He had had recurrent back spasms since then. Page 30. He had had X-rays during service (apparently while on the USS Kitty Hawk) which he testified had revealed that "the space between the pelvis and the socket [sic] is - is different on both sides; one is bigger than other, apparently, alignment change." Page 30. On the other hand, the STRs contain a medical history questionnaire in April 2004 reflects that the Veteran reported not ever having had a back injury. The Veteran also testified that he had seen a chiropractor [whom he did not identify] that had recommended an exercise regimen, which had provided only some relief. Pages 32 and 33. The service representative requested that the Veteran be afforded a VA examination of his back to document the current existence and etiology of the Veteran's low back disability. Pages 33 and 34. Skin Disease with Ulceration of the Posterior Scalp At the travel Board hearing the Veteran testified that he was treated during service for ulcerations of the posterior aspect of his scalp while in the field medical service school "at Camp Delmar, Camp Pendleton" with Lotrimin. Page 34. He was again treated for this during service in 2003 by a physician on the USS Kitty Hawk with antibiotic ointment. Page 35. He further testified that the area involved not only itched, but involved an even larger area, now measuring 1 1/2 by 1 inches. Pages 36 and 37. This skin problem had been continuous for 10 to 15 years. Page 38. The STRs confirm that the Veteran was treated for ulcerated skin of the posterior scalp on one occasion, after having received a haircut. Left Shin Contusion Residuals At the travel Board hearing, the Veteran testified that he was treated during service he sustained a bad contusion of the anterior portion of his left shin in 2004, aboard the USS Kitty Hawk, when he hit his shin on a ladder. Pages 38 and 39. He had been treated with Motrin and returned to work. The injury had been very painful at that time, although there had not been a fracture. He now had a permanent bruise with permanent swelling in that area. Page 40. He had been told that this had caused impaired circulation in his leg and foot, despite his use of compression socks. He had had this problem since the initial injury. Page 41. The Veteran's service representative requested that the Veteran be afforded a VA examination to document the current existence and etiology of the Veteran's current residuals of the contusion, including any impaired circulation. Page 42. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide as much identifying information as possible as to the inclusive dates of treatment or evaluation by a chiropractor for low back disability, including the full name and address of such clinical source. He should be provided with any necessary releases or authorizations to allow VA to assist in obtaining such records. If he provides sufficient information, such a request for records should be made and if such records are obtained they should be made a matter of record. The Veteran should also be requested to provide any other identifying information as to the inclusive dates of treatment or evaluation by any clinical source with respect to his claims for service connection for bilateral hearing loss; tinnitus; residuals of a right wrist extensor strain, to include tendonitis; a low back strain; skin disease with ulceration of the posterior scalp; and for residuals of a contusion of the left shin. In particular the Veteran should be requested to provide information relative to his testimony that X-rays had revealed an abnormality of his low back, which he contends is of service origin. That is, because the STRs do not provide any indication that low back X-rays were done during service, he should be requested to clarify whether such X-rays were taken during any Navy reserve service or by any private clinical source. In either event, he should provide as much information as possible to allow VA to assist him in attempting to obtain any such X-ray report. The Veteran should be provided with any necessary releases or authorizations to allow VA to assist in obtaining such records. If he provides sufficient information, such a request for records should be made and if such records are obtained they should be made a matter of record. 2. As to the claims for service connection for bilateral hearing loss and tinnitus, afford the Veteran a VA audiology examination for the purpose of determining whether he now has a hearing loss disability by VA standards on the basis of either puretone threshold levels or speech discrimination; and to determine whether it is at least as likely as not (i.e. at least a 50-50 probability) that any hearing loss disability (if any) or any tinnitus is due to inservice exposure to acoustic trauma. If it is found that the Veteran has a hearing loss disability by VA standards, the VA audiologist is requested to address the Veteran's contentions the inservice audiometric testing documented a decrease in puretone threshold levels which signifies the onset of hearing loss during service. Also, the audiologist is requested to address whether it is as likely as not that he Veteran's claimed tinnitus is (1) proximately due to any hearing loss of service origin; and (2) whether it is as likely as not that the Veteran's claimed tinnitus is (1) aggravated, i.e., permanently increased in severity, by hearing loss of service origin. 3. As to the claims for service connection for residuals of a right wrist extensor strain, to include tendonitis; a low back strain; skin disease with ulceration of the posterior scalp; and for residuals of a contusion of the left shin afford the Veteran an appropriate examination or, if needed, examinations, for the purpose of determining whether he now has these claimed disabilities and, if so, whether they are of service origin. In other words, is it at least as likely as not (i.e. at least a 50-50 probability) that the Veteran has the above mentioned disabilities which are related to service, including any incidents of service. As to the claim for service connection for residuals of a right wrist extensor strain, to include tendonitis, the examiner should be requested to state whether the Veteran has any additional disability or functional impairment that is separate and apart from the service-connected residuals, laceration over the right thenar eminence involving the thenar muscle with scar. If so, the examiner should identify such additional disability and describe the functional impairment that results from such disability. Electrodiagnostic testing should be conducted if the examiner deems it necessary. As to the claim for a low back strain, the examiner should be requested to opine whether the Veteran now has a low back disability which is at least as likely as not (i.e. at least a 50-50 probability) due to or the result of an inservice injury. The examiner should state whether the Veteran has any residuals from the documented inservice low back injury. As to the claim of service connection for skin disease with ulceration of the posterior scalp, the examiner should be requested to opine whether the Veteran now has a skin disease with ulceration of the posterior scalp which is at least as likely as not (i.e. at least a 50-50 probability) of service origin. As to the claim of service connection for residuals of a contusion of the left shin, the examiner should be requested to opine whether it is at least as likely as not (i.e. at least a 50-50 probability) that the Veteran now has any chronic residuals of his documented inservice left shin injury and, if so, specify the nature and extent of any such chronic residuals, to include any impaired circulation in the left leg and foot. 4. The Veteran is hereby notified that it is the Veteran's responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of the case. 5. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remains denied, issue to the Veteran and the Veteran's representative a Supplemental Statement of the Case, and afford the appropriate period of time within which to respond thereto. 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 CONTINUE ON THE NEXT PAGE 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. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs