Citation Nr: 1751295 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-24 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for headaches, to include as secondary to bilateral hearing loss. 4. Entitlement to service connection for a bilateral knee disorder. 5. Entitlement to service connection for bilateral carpal tunnel syndrome. 6. Entitlement to service connection for a tooth/dental disorder. 7. Entitlement to service connection for a respiratory disorder. 8. Entitlement to service connection for a cardiovascular disorder. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps (USMC) from November 1994 to December 1995, and in the United States Army from October 1997 to May 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By that rating action, the RO denied service connection for the disabilities on appeal. The RO also denied the claim of entitlement to a TDIU rating. The Veteran appealed these determinations to the Board. In February 2017, the Veteran provided testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Regarding the claim for service connection for headaches, the Veteran testified at the hearing that they occurred when she had a bad hearing ache and when she was having trouble with his ears. Transcript (T.) at page (pg.) 9. Thus, in view of this testimony, the Board has characterized the claim for service connection for headaches, to include as secondary to the claimed bilateral hearing loss disability in order to accurately reflect the Veteran's contentions, as noted on the title page. Issues number two (2) through (9) are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT The Veteran's tinnitus began during military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for tinnitus. She maintains that she has had ringing in her ears ever since she had served as a combat engineer in the United States Army, that it was noted at discharge from the Army, and that it has continued since that time. T. at pgs. 6-8. Generally, to establish service connection, a claimant 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). The Board first finds that the Veteran is competent to report that she was exposed to loud noises in service and that her tinnitus began therein. At the February 2017 hearing, the Veteran testified that her tinnitus (i.e., ringing in the ears) had its onset while serving as a combat engineer during her period of service in the United States Marine Corps, that it became more pronounced during her period of service with the United States Army, and that it has continued since that time. T. at pgs. 6-8. The Veteran's testimony is competent as tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's testimony is also credible because her statements are supported by her DD 214 reflecting that she had served as a combat engineer in the USMC. Moreover, her lay statements regarding in-service noise exposure have been consistent throughout the course of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence, demeanor at a hearing), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the Veteran has a current disability of tinnitus based on her competent lay testimony. See Charles, 16 Vet. App. at 370. At the time of the February 2017 RO hearing, the Veteran testified that the ringing in her ears had stayed since her period of military service in the United States Army. T at pg. 8. Thus, the Veteran has provided competent and credible lay evidence of a disability that began during service and has existed since that time; service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND A remand is needed for the remaining issues on appeal to obtain outstanding VA and private medical records and to obtain additional VA medical examinations and opinions. Regarding the issue of entitlement to service connection for headaches, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The Veteran stated that she has continued to seek treatment for this disability from the VA Medical Center (VAMC) in Mobile, Alabama. T. at pg. 10. Although records from this VAMC, dated through February 2010, are of record, more recent reports are absent. These records must be obtained. Regarding the claim for service connection for a respiratory disorder, a remand is required to attempt to obtain private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). The Veteran stated that she has continued to seek treatment for her asthma from the Stanton Road Clinic. T. at pg. 4. Although reports from this private facility, dated through January 2016, are of record, more recent reports are absent. Remand is required to attempt to obtain these records. Regarding the claims for service connection for hearing loss, bilateral wrist carpal tunnel syndrome, bilateral knee disorder, cardiovascular disorder, respiratory disorder, and headaches, remand is required for an examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran reported treatment during service for hearing loss, wrists, knees, chest pain, pneumonia, and headaches. Specifically, she has maintained that she contracted pneumonia and experienced chest pain during basic training with the USMC and was told she had a heart murmur. She asserted that she dislocated both wrists in a motor vehicle accident in October 1998. She testified that she was told that she had deteriorated cartilage in both knees during service in the United States Army. See T. at pgs. 4, 12, 15. She testified that since service discharge, she has continued to experience problems with hearing loss, headaches. and, knee, wrist and chest pain. See T. The Veteran's assertions have been corroborated in written statements, prepared by JG and LN, dated in March 2016 and January 2017, respectively. The Board notes that the Veteran's service treatment records (STRs) from her periods of service in the USMC and United States Army are limited to an October 1994 service enlistment examination report, dental treatment records, reflecting treatment for gingivitis for teeth numbered 19-20, 29-30, and, records pertaining to unrelated gynecological problems. The remainder of the STRS are unavailable. See April 2012 VA Memorandum of Formal Finding on the Unavailability of Service Treatment Records. The post-service VA and private medical evidence of record reflects that the Veteran has received treatment for earaches, bilateral wrist pain, mild right carpal tunnel syndrome, heart palpitations, bilateral knee pain, asthma, and migraine headaches. See February 2010 VA treatment record; private records dated from November 2015 to January 2016. Given the Veteran's assertions with respect to the above-cited disabilities, the unavailability of the bulk of her STRs from both periods of military service, and the current medical evidence medical examinations with opinions addressing the etiology of these disabilities are needed. Finally, the Board finds that the issue of entitlement to a TDIU rating is inextricably intertwined with the remanded service connection claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding relevant medical records from the VAMC in Mobile, Alabama, dated from February 2010 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her attorney. 2. After securing all necessary release forms, obtain the Veteran's treatment records from the USA Stanton Road Clinic, 575 Stanton Road, Mobile, Alabama 36617-2344, dated from January 2016 to the present. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any hearing loss had onset in, manifested within one year of service discharge, or is otherwise caused by, active service. The examiner must address the Veteran's assertions of in-service hearing difficulty. The examiner must also specifically address the Veteran's military occupational specialty. The examiner is hereby advised that the bulk of the Veteran's STRS from both periods of military service are unavailable. The examiner is also advised that the Veteran is competent to report having had diminished hearing during service. In addition, the providers of the buddy statements are also competent to report their observations of the Veteran's symptoms, and such lay statements must be acknowledged and considered in formulating any opinions. If an examiner rejects the lay reports regarding symptoms, he or she must provide a reason for doing so. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed knee disorder had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the diagnosis of right knee osteoarthritis in a March 2016 private medical record; 2) the Veteran's assertions of in-service knee pain; and 3) the buddy statements corroborating knee pain during service. The examiner is hereby advised that the bulk of the Veteran's STRS from both periods of military service are unavailable. The examiner is also advised that the Veteran is competent to report having had bilateral knee pain during service. In addition, the providers of the buddy statements are also competent to report their observations of the Veteran's symptoms, and such lay statements must be acknowledged and considered in formulating any opinions. If an examiner rejects the lay reports regarding symptoms, he or she must provide a reason for doing so. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her bilateral wrist disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed wrist disorder had onset in, or was otherwise caused by, active service. The examiner must address the following: 1) the Veteran's assertions of an in-service accident; 2) the buddy statements corroborating the accident and wrist difficulties; 3) a March 2016 private medical record diagnosing right carpal tunnel syndrome; and 4) a January 2016 private medical record. The examiner is hereby advised that the bulk of the Veteran's STRS from both periods of military service are unavailable. The examiner is also advised that the Veteran is competent to report having had bilateral wrist problems during service. In addition, the providers of the buddy statements are also competent to report their observations of the Veteran's symptoms, and such lay statements must be acknowledged and considered in formulating any opinions. If an examiner rejects the lay reports regarding symptoms, he or she must provide a reason for doing so. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her respiratory disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed respiratory disorder had onset in, or was otherwise caused by, active service. The examiner must specifically address the following: 1) the Veteran's assertions of in-service difficulty breathing; 2) buddy statements noting the Veteran's asthma during service; and 3) private medical records diagnosing bronchitis. The examiner is hereby advised that the bulk of the Veteran's STRS from both periods of military service are unavailable. The examiner is also advised that the Veteran is competent to report having had breathing problems during service. In addition, the providers of the buddy statements are also competent to report their observations of the Veteran's symptoms, and such lay statements must be acknowledged and considered in formulating any opinions. If an examiner rejects the lay reports regarding symptoms, he or she must provide a reason for doing so. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her cardiovascular disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cardiovascular disorder had onset in, manifested within one year of service discharge, or was otherwise caused by, active service. The examiner must address the Veteran's assertions of in-service heart palpitations. The examiner is hereby advised that the bulk of the Veteran's STRS from both periods of military service are unavailable. The examiner is also advised that the Veteran is competent to report having had chest pain during service. In addition, the provider of the buddy statements are also competent to report their observations of the Veteran's symptoms, and such lay statements must be specifically acknowledged and considered in formulating any opinions. If an examiner rejects the lay reports regarding symptoms, he or she must provide a reason for doing so. 8. If and only if the Veteran is found to have bilateral hearing loss for VA compensation purposes that is related to a period of military service, an appropriate examiner must an opinion as to whether it is at least as likely as not (i.e., 50 percent or higher degree of probability) that the Veteran's headaches are proximately due to or aggravated by the Veteran's service-connected bilateral hearing loss. 9. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 10. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 11. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her attorney. After the Veteran and her attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs