Citation Nr: 1716396 Decision Date: 05/15/17 Archive Date: 05/22/17 DOCKET NO. 09-36 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder or depression. 3. Entitlement to service connection for a right hip, right groin, or right thigh disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded the case in October 2014 to obtain Social Security Administration records, contact the Veteran and obtain VA and Vet center treatment records, and provide VA examinations to the Veteran. The case has since returned to the Board for appellate review. Although the issue on appeal was characterized by the RO as entitlement to service connection for posttraumatic stress disorder (PTSD), in light of the Veteran's assertions and the evidence of record, the Board has recharacterized the issue more broadly. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). This case consists entirely of documents in the Veterans Benefits Management System (VBMS). The Board has reviewed all relevant documents in VBMS. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Virtual VA includes additional VA treatment records, and the Agency of Original Jurisdiction (AOJ) highlighted their review of all evidence of record in the April 2016 supplemental statement of the case. Otherwise, the documents in Virtual VA, including the VA examination reports, are duplicative of those in VBMS. The issues of entitlement to service connection for a psychiatric disorder and a right hip disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The preponderance of the evidence demonstrates that tinnitus is related to service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, in the decision below, the Board has granted the Veteran's claim for service connection for bilateral tinnitus, which represents a full grant of this benefit sought on appeal. Thus, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The Veteran seeks service connection for tinnitus based upon his in-service noise exposure during training on the M-14 rifle. Specifically, he contends that training during boot camp, without benefit of hearing protection, to use the M-14 rifle exposed him to hazardous noise levels. His representative has also recounted the Veteran's report of hearing problems that began in-service when he used the pistol range without hearing protection. Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The Board finds that the weight of the evidence of record supports a finding of service connection for tinnitus. First, there is a current diagnosis of tinnitus in November 2012 and March 2016 VA examination reports. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Second, the evidence of record indicates in-service noise exposure. The Veteran provided competent and credible testimony that he worked weapons in service. The Veteran detailed in-service noise exposure to the M-14 rifle, without benefit of hearing protection. His DD-214 supports this lay testimony, reflecting that he earned a marksman's badge for his proficiency with an M-14 rifle. The Board finds there was exposure to noise during service, giving due consideration to the places, types, and circumstances of a Veteran's service as shown by his service records and all medical and lay evidence. See 38 U.S.C.A. § 1154(a). Third, the Veteran has provided competent and credible lay testimony that his tinnitus began during service and his existed since that time. The Veteran's representative relayed this information to the VA in a March 2014 VA Form 646. The Board finds the Veteran's testimony both competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Although the November 2012 and March 2016 VA examiners provided negative medical opinions, these opinions are of no probative value with regard to tinnitus. The November 2012 examiner based this opinion on the lack of proximity between service and the onset of tinnitus. The March 2016 VA examiner offered less rationale than that, but did refer to onset for tinnitus 10 years prior. Neither examiner specifically addressed the Veteran's competent and credible lay testimony as to in-service noise exposure and in-service onset of tinnitus. See Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). In this case, there is competent, credible evidence that the Veteran was exposed to hazardous noise in service, and experienced tinnitus during and since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (providing that lay testimony regarding observations of symptoms may provide sufficient support for a claim of service connection). Accordingly, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND With regard to the Veteran's service-connection claim for a psychiatric disorder, the Board notes that the October 2014 remand directives called for obtaining the Vet Center treatment records. The Veteran has reported treatment at the Beverly Clinic and the Chicago Vet Center, several times throughout the appellate period; including in his June 2007 notice of disagreement, a November 2012 VA Form 21-4142, and to his treating mental health care providers at the Crown Point VA Medical Center (VAMC). Yet on remand, the AOJ made no further efforts to obtain the Vet Center treatment records. Remand is required to ensure compliance with the October 2014 remand directives, and to obtain the Vet Center treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the Veteran's service-connection claim for a right hip, groin, or thigh disorder, the Board notes that he attended a March 2016 VA examination while this case was on remand. That examiner only considered the diagnosis of the Veteran's in-service incision and drainage for an abscess on his right hip area. This means that the etiology of osteochondral ischemic disease as reflected on May 2005 X-rays in the Westside VAMC treatment records has not been addressed. Moreover, the March 2016 VA examiner offered an opinion relying on the lack of any treatment between the Veteran's 1969 separation from service and the date of the examination. However, this is untrue, as the VA treatment records themselves reflect treatment for the Veteran's left hip in May 2005, June 2005, and September 2009. Remand is required for a new VA examination to address osteochondral ischemic disease and the VA treatment. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure any outstanding, relevant VA medical records, to include any records from the Hines VAMC for treatment since June 1999, the Crown Point VAMC for treatment since November 2010, the Hype Park VAMC for treatment since June 2005, and the Westside VAMC for treatment since March 2016; as well as all treatment records from the Beverly Clinic and the Chicago Vet Center. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right hip, groin, or thigh disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service VA medical records, and lay statements. In this regard, the VA treatment records reflect treatment for the Veteran's left hip in May 2005, June 2005, and September 2009. These records include a May 2005 X-ray showing osteochondral ischemic disease. The Veteran contends that his current right hip disorder is due to a procedure he had in service to drain an abscess. His service treatment records show treatment for cellulitis over the pelvis in December 1968. As early as May 2005, he has reported to his VA health care providers that he has had chronic right hip pain for many years. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. For each right hip, groin, or thigh disorder identified, the examiner should discuss whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. In answering this question, the examiner should discuss the May 2005 Westside VAMC treatment note suggesting that arthritic changes are possibly related to an in-service procedure for infection. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions is required and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development has been completed, the AOJ should review the case on the basis of additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative a supplemental statement of the case and a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs