Citation Nr: 1634647 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 10-22 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a lower back condition, degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. He is the recipient of a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for tinnitus and a lower back condition, degenerative joint disease. In November 2013, the Board remanded these issues for further development. The case is once again before the Board. The issue of service connection for a lower back condition, degenerative joint disease is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The Veteran was exposed to loud noise from artillery during service. 2. The Veteran's tinnitus had its onset during service and has been continuous since separation from service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that his tinnitus began during service and has continued since his separation from service. The Veteran's form DD-214 reflects a military occupational specialty (MOS) of Indirect Fire Infantryman. The Veteran is the recipient of the Combat Infantryman Badge, among other awards. 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; 38 C.F.R. § 3.303. 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). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. At the outset, the Board finds that the Veteran incurred in-service acoustic trauma, based on his consistent statements regarding his exposure to weapons fire during service, as well as the information provided on his DD Form 214, which documents his specialty of indirect fire infantryman and his receipt of a Combat Infantryman Badge. 38 C.F.R. § 1154(b). The Board also acknowledges the presence of a current disability, as the Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly in this instance, during VA examinations conducted in April 2010 and May 2014. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "'medical in nature,'" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, the remaining question is whether the Veteran's current tinnitus is related to service. The Board finds that the Veteran's tinnitus is related to service. In so finding, the Board acknowledges the April 2010 VA examiner's statements that she was unable to determine whether or not the Veteran's tinnitus was related to service without resorting to speculation. This examiner opined that although the Veteran reported experiencing tinnitus for many years, he did not relate it to any certain event or circumstance in service. She also noted that he had a history of taking ototoxic medications that have tinnitus as a possible side effect. In response to a Board remand directive, the same examiner offered an addendum opinion in February 2014 in which she stated the Veteran's onset of tinnitus was 40 years after service and that there was no evidence to support a claim of delayed-onset tinnitus. The examiner also noted the inconsistent reports and audiograms in the Veteran's medical records and found that it was less likely than not that the Veteran's tinnitus was due to an in-service acoustic trauma. However, the Veteran has consistently stated that his tinnitus began in service. In his October 2009 notice of disagreement, he reported that he experienced ringing in his ears since he was in Vietnam, but he did not worry about it because he was so happy to make it back, and did not report it. At discharge he was told that if he said anything was wrong with him he would have to stay in the Army until testing was done, otherwise he would be leaving the next morning. As he was young, the Veteran stated that he did not report the tinnitus he was experiencing. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds that the Veteran's reports of the in-service onset of his tinnitus and its continuation thereafter both competent and credible. Further, the Veteran's statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). Additionally, the Veteran underwent another VA hearing loss and tinnitus examination in May 2014. This examiner noted that the Veteran reported experiencing constant bilateral tinnitus that had been present for many years, though he was not able to provide any specific dates and/or circumstances regarding onset. The examiner determined that it was at least as likely as not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran is service-connected for hearing loss, and that he was directly engaged in combat while serving in Vietnam. The examiner also noted that on past examinations, the Veteran reported a longstanding history of constant bilateral tinnitus. The examiner opined that due to the Veteran's hearing loss being deemed service related, and the Veteran's exposure to combat noise during active duty, a nexus is established relating the Veteran's current tinnitus to military noise exposure. In light of the evidence of record, including the Veteran's competent and credible reports of tinnitus that has continued since service, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current tinnitus was incurred in service. See Fountain, 27 Vet. App. at 272. Accordingly, resolving all doubt in his favor, service connection is warranted. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. §§ 3.102 (2015). ORDER Service connection for tinnitus is granted. REMAND In November 2013, the Board remanded the issue of service connection for a low back disability for a new VA spine examination to be conducted by a physician skilled in the treatment and diagnosis of spine disabilities. In its remand directives the Board asked the examiner to render an opinion as to whether it is at least as likely as not that the Veteran's current low back disability had its onset in service, or is otherwise related to service. The examiner was also asked to address whether or not the symptoms the Veteran exhibited in service in 1968, after he was thrown from a Jeep, were early symptoms or manifestations of the rheumatoid arthritis he was diagnosed with in 2003. A VA examination was conducted in January 2014 by an advanced practice nurse. The examiner noted the Veteran's diagnoses of facet degenerative joint disease of the lumbar spine and degenerative disc disease L3-L4, L4-L5. She stated that the Veteran's current lumbar conditions are not a manifestation of his rheumatoid arthritis diagnosis. The examiner's rationale for this opinion was that the in-service event was clearly documented as discomfort from a claimed auto accident and that rheumatoid arthritis is an inflammatory condition and would have nothing to do with the former. She also stated that there were no objective findings to link the muscle pain in 1968 to the medical notations beginning in 1999. She determined that it was more likely that his degenerative disc disease and facet arthropathy were related to his age, genetics, rheumatoid disease, and post-service lifestyle than his intraservice condition. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The January 2014 examiner did not comply with the November 2013 remand directives. Although the examiner generally addressed the questions posed by the Board, the examiner did not adequately address whether the Veteran's in-service injuries were early symptoms or manifestations of the Veteran's rheumatoid arthritis that was diagnosed in 2003, and did not consider the Veteran's lay statements regarding the onset of his low back disability, or the continuity of symptoms. Nor did she provide a thorough rationale for her opinion that the Veteran's degenerative joint disease, L3-L5 is not related to the injury he sustained to his low back, L2-L5, while he was in service. An adequate opinion must provide an explanation for the finding that the in-service treatment for a low back injury is not related to the Veteran's current disability, and explain why the back symptoms the Veteran experienced after his in-service accident were not an indication of early stages of rheumatoid arthritis, and, finally, must take into consideration the Veteran's lay statements regarding the continuity of symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). The Board finds that this issue must be remanded again to obtain an adequate VA examination and opinion that thoroughly addresses the Veteran's medical history and his contentions. On remand, the RO should also update the Veteran's VA treatment records, and the Veteran should be provided an opportunity to submit any outstanding private treatment records relating to his lower back, or authorize VA to obtain such records on his behalf. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his lower back condition. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. After the above development has been completed, schedule the Veteran for a VA spine examination with a qualified physician. The claims file should be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted, and all findings reported in detail. The examiner should address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability, degenerative joint disease, arose during service or is otherwise related to service, to include the severe pain at L2-L5 he experienced following the October 1968 auto accident during which his Jeep rolled? The examiner is directed to the January 2014 x-ray report showing marked degenerative disk disease L3 to L5 with osteoarthritic changes involving articular facets, and asked to specifically comment if this condition could be related to the Veteran's October 1968 in-service injury to his low back, with pain at L2-L5. The examiner is also directed to consider the Veteran's May 2004 report of a diagnosis of a bulging disc 25 years earlier and comment on whether this condition could be related to his in-service injury. b) Is it at least as likely as not (50 percent or greater probability) that the injuries the Veteran sustained in the 1968 automobile accident or the severity of the pain he experienced were early symptoms or manifestations of the Veteran's rheumatoid arthritis diagnosed in 2003? Please note that the Veteran is competent to report symptoms, treatment, and injuries, including that he has experienced low back pain since service, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide a complete rationale for all opinions and conclusions reached. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided. 4. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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 2015). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs