Citation Nr: 1616701 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 13-30 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for right shoulder strain. 4. Entitlement to service connection for right knee strain. 5. Entitlement to service connection for left knee strain. 6. Entitlement to service connection for a left wrist disability, claimed as carpal tunnel syndrome. 7. Entitlement to service connection for low back pain (also claimed as thoracic back pain). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had confirmed active service from October 1996 to October 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2015, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A copy of the hearing transcript is of record. The issues of entitlement to service connection for bilateral hearing loss, right shoulder disability, right and left knee disabilities, left wrist disability, and back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, his current tinnitus is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria to establish service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for tinnitus as a result of exposure to loud noises in service from gunfire and generators. He asserts that he experienced a constant beeping sound in his ears during service and ever since. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2015). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). There is evidence of a current disability. In addition to tinnitus being a condition capable of lay observation, the Veteran's medical evidence shows a current diagnosis of bilateral tinnitus. See, December 2009 VA examination report; April 2013 VA examination report; June 2013 VA addendum. The Veteran's STRs do not show any complaints, treatment, and/or diagnoses of tinnitus. However, his military occupational specialty was a multichannel transmission system operator. The Veteran's lay statements regarding exposure to gunfire and generator noise while in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service. An April 2002 audiogram reflects that the Veteran was "Routinely Noise Exposed." Acoustic trauma in service is therefore conceded. With regard to etiology, the record contains two opinions that are not favorable to the claim. However, these opinions, dated in December 2009 and June 2013, impermissibly relied on the absence of tinnitus in service. Accordingly, these opinions are not only inadequate, but are of little to no probative value. Further development could be undertaken so as to remand the claim for additional clarification from an examiner. However, the record does demonstrate that the Veteran has asserted throughout the pendency of this claim that he has had the symptoms of tinnitus since service and he as a layperson is competent to report that he was exposed to loud noise in service and that his tinnitus began therein. Indeed, he is competent to report his own experiences and there is nothing in the record that contradicts these assertions, aside from an absence of documented treatment or complaints, which by itself is insufficient to discredit offered testimony. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's statements in this regard are also credible because they are supported by his service personnel records which show that he was a multichannel transmission system operator. Therefore, the Board finds his statements not only competent, but credible as well. As noted above, tinnitus is a disability that can be identified through lay observation alone. Charles, supra. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Because the Board has found his statements that tinnitus manifested in service and persisted since that time competent and credible and there is no probative evidence refuting his statements, the Board therefore finds that service connection for tinnitus must be granted as it is shown to have manifested in service. ORDER Service connection for tinnitus is granted. REMAND Further development is necessary prior to analyzing the merits of the service connection claims for bilateral hearing loss, right shoulder disability, right and left knee disabilities, left wrist disability, and low back pain. Records During his December 2015 personal hearing, the Veteran indicated that he has received post-service treatment, to include in some instances physical therapy, for his claimed orthopedic disabilities. The current record contains limited private records from "Scott & White." The Veteran should be given an opportunity to identify any additional private treatment for his claimed disabilities. On remand, any identified treatment records should be requested and obtained. Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of exposure to acoustic trauma in service. A December 2009 VA examiner determined that the Veteran's hearing loss is less likely as not related to service, reasoning that there was no evidence of aggravation of hearing loss from 1996 to 2002. An April 2013 VA examiner examined the Veteran but did not have access to the Veteran's claims file and therefore unable to relate the Veteran's hearing loss to service without resorting to speculation. In a June 2013 VA addendum, the examiner determined that the Veteran's hearing loss is less likely as not caused by or a result of exposure to acoustic trauma in service. The examiner reasoned that the Veteran's STRs document no significant worsening in hearing sensitivity between March 1997 and April 2002. The examiner reasoned that given the Veteran's military hearing test results and the absence of any documented worsening in hearing sensitivity or acoustic trauma during his service, it is less likely than not that the Veteran's hearing was affected significantly by military service. The Board however finds that the June 2013 VA opinion does not consider more recent research, cited below, involving hearing loss. For these reasons, the Board finds the reasoning of the June 2013 VA hearing loss opinion inadequate, an addendum is needed to clarify the etiology of the currently diagnosed hearing loss disability. Orthopedic Disabilities (Right Shoulder, Bilateral Knee, Left Wrist, and Spine) Addendums are also needed to clarify the etiology of the Veteran's right shoulder, bilateral knee, left wrist, and spine disabilities. In determining that these disabilities are less likely as not related to service, VA examiners in 2009 and 2013 reasoned that there is no evidence of chronic complaints in service or afterward. This reasoning however does not consider the Veteran's competent reports of having had relevant complaints during service and ever since service discharge. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all private medical care providers that have treated him for any hearing loss, right shoulder, bilateral knee, left wrist, and back problems since his separation from service. Make arrangements to obtain all records that he adequately identifies and that not have already been obtained. 2. Associate the Veteran's complete VA treatment records with the claims folder. 3. Then, forward the Veteran's claims file to the June 2013 VA audiologist for the purpose of obtaining an addendum as to the nature and etiology of the current bilateral hearing loss disability. The need for the Veteran to be re-examined is left to the designee's discretion. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although a review of the claims file is imperative, attention is called to the following: a. The Veteran's March 1997 entrance audiogram and an April 2002 audiogram. b. The Veteran is competent to report hearing difficulty in service and ever since. c. December 2009 and April 2013 VA examination reports diagnosing bilateral hearing loss, and June 2013 addendum. d. The absence of documented hearing loss in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). e. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). THEN, the examiner is asked to respond to the following: i. Clarify whether the Veteran's claimed in-service incidents of daily exposure to loud noise from gunfire and generators could result in or aggravate his current hearing loss. Regarding the basis for that opinion, please comment on the likelihood that the loud noises experienced during service noted herein resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift (TTS) in service. If you find auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. ii. Additionally, the Board would appreciate if the examiner could specifically comment on the impact, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the below: "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). - J Neurosci. 2006 Feb 15; 26(7): 2115-2123. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. The examiner must review all medical evidence associated with the claims file. However, the examiner should be advised that Board finds the Veteran credible and thus his history should be accepted as such, absent a compelling reason otherwise. A complete rationale for any opinion expressed should be included in the examination report. 4. Forward the Veteran's claims file to the December 2009 VA examiner for the purpose of obtaining an addendum as to the nature and etiology of the current right shoulder disability. The need for the Veteran to be re-examined is left to the designee's discretion. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After reviewing the Veteran's claims file, the examiner is asked to respond to the following: Clarify whether the Veteran's current right shoulder strain had its onset in service or is otherwise related to service. In doing so, reconcile the opinion with all evidence of record, specifically to include a July 2000 STR reflecting an impression of a right deltoid strain/rotator cuff tendonitis; September 2000 STR showing complaint of right deltoid pain, and the Veteran's COMPETENT lay reports of right shoulder symptoms in service and continuing symptoms since service. A complete rationale for any opinion expressed should be included in the examination report. 5. Forward the Veteran's claims file to the March 2013 VA examiner for the purpose of obtaining an addendum as to the nature and etiology of the current right and left knee disabilities. The need for the Veteran to be re-examined is left to the designee's discretion. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After reviewing the Veteran's claims file, the examiner is asked to respond to the following: Clarify whether the Veteran's current right and left knee disabilities had their onset in service or are otherwise related to service, to include the several in-service complaints of knee pain with a diagnosis of "RPPS" in 1997, and the Veteran's COMPETENT lay reports knee symptoms in service and continuing symptoms since service. **Specifically comment on the reasoning that the Veteran's 1997 knee pains in service were acute and had resolved, given the Veteran's competent reports of having had knee problems in service and ever since service discharge. A complete rationale for any opinion expressed should be included in the examination report. 6. Forward the Veteran's claims file to the December 2009 VA examiner for the purpose of obtaining an addendum as to the nature and etiology of any left wrist disability. The need for the Veteran to be re-examined is left to the designee's discretion. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After reviewing the Veteran's claims file, the examiner is asked to respond to the following: a). Clarify whether the Veteran has any current left wrist disability to account for his reports of pain. (The December 2009 VA examination diagnosed "a remote left wrist injury with residual pain). b). For any currently diagnosed left wrist disability, determine whether it had its onset in service or is otherwise related to service. In doing so, reconcile the opinion should with all evidence of record, specifically to include the STRS showing a May 2000 left wrist ligament strain, and the Veteran's COMPETENT report of having had left wrist symptoms in service and ever since service discharge. A complete rationale for any opinion expressed should be included in the examination report. 7. Forward the Veteran's claims file to the March 2013 VA examiner for the purpose of obtaining an addendum as to the nature and etiology of the current low back disability. The need for the Veteran to be re-examined is left to the designee's discretion. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After reviewing the Veteran's claims file, the examiner is asked to respond to the following: Clarify whether the current low back disability, diagnosed as lumbar spine strain with spondylosis and spondylolisthesis, had its onset in service or is otherwise related to service. **Specifically comment on the reasoning that the Veteran's in-service muscle strain of the back from overuse (per examiner) was acute and had resolved, in light of the Veteran's reports of having had back symptoms in service and ever since service discharge. A complete rationale for any opinion expressed should be included in the examination report. 8. Then, readjudicate the service connection claims remaining on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative will be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs