Citation Nr: 1754627 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-07 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hypertension to include as secondary to in-service herbicide exposure or to the service-connected diabetes mellitus, type II, and/or the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2016, the Board denied the Veteran's claim for service connection for tinnitus and remanded the claim for service connection for hypertension. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the Board's August 2016 decision with regard to the claim of service connection for tinnitus, and returned the case to the Board for further consideration consistent with the JMPR. As discussed below, the Board is granting service connection for tinnitus, constituting a full grant of the benefit sought on appeal; therefore, any discussion with regard to compliance with the May 2017 JMPR is rendered moot. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to the acoustic trauma he sustained in active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for tinnitus, any deficiency found in VA's duties to notify and assist is rendered moot. There is no prejudice to the Veteran in proceeding to decide this issue. Merits Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran believes he has tinnitus as a result of acoustic trauma in active service. See April 2009 Veterans Application for Compensation or Pension. As noted, the Board concedes exposure to his in-service acoustic trauma, as his military occupational specialty (MOS) as a helicopter mechanic had a high probability of noise exposure. M21-1, Part III, Subpart iv, Chapter 4, Section B, 4.e. Service treatment records (STRs) are silent for complaints of, or treatment for, tinnitus. However, the Veteran has specifically reported that tinnitus began in 1970, when he became a helicopter crew chief. See October 2009 VA Examination. The Board notes that the Veteran is competent to report when he first experienced symptoms of tinnitus. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Also, the Board finds the Veteran to be credible in this respect. At an October 2009 VA audiology evaluation, the Veteran reported current and constant tinnitus. The examiner acknowledged the Veteran's complaints of tinnitus and diagnosed tinnitus. However, the examiner opined that the Veteran's tinnitus is less likely as not caused by, or a result of, military noise exposure. The examiner based this opinion on the fact that the Veteran had normal hearing sensitivity following service and that his tinnitus is most likely due to current hearing loss with onset after military service. Nevertheless, the Board finds the October 2009 VA opinion to be inadequate for adjudication purposes. In this regard, the examiner failed to consider the Veteran's reports of experiencing tinnitus while in active service and symptoms since that time. This evidence suggests that the Veteran's tinnitus began in-service and directly contradicts the examiner's rationale. Failure to consider this evidence was in error. Thus, as the opinion is not adequate, it cannot serve as the basis of a denial of service connection for tinnitus. Indeed, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify tinnitus, and his statements have been found credible. In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. He has a current diagnosis of tinnitus. He has also competently and credibly reported experiencing tinnitus in service and credibly asserted a continuity of relevant symptomatology since service. The VA medical opinion of record is not a competent opinion against the claim for service connection for tinnitus as it is inconsistent with the other evidence of record. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND If VA provides a medical examination or opinion for the issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Adequacy occurs when the Board is able to perform a fully informed adjudication. Id. As such, VA medical examinations must be based upon consideration of the Veteran's entire history and describe the disability present. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Additionally, VA medical opinions must be based on accurate factual premises, address all applicable theories of entitlement, and be supported by clearly and fully articulated rationale. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120; Reonal v. Brown, 5 Vet. App. 458 (1993). In January 2017, the Veteran was provided a VA medical opinion regarding the etiology of his hypertension. The VA examiner opined that the Veteran's current diagnosis of hypertension was not related to in-service readings of elevated systolic blood pressures or to in-service agent orange exposure. See DD 214, Armed Forces of the United States Report of Transfer or Discharge, confirming Veteran's service in the Republic of Vietnam from May 1970 to March 1971. Nevertheless, the Board finds the above opinion inadequate as it is not supported by a fully articulate rationale. The opinion is conclusory and the examiner failed to provide an explanation for the opinion reached. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof); 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the Veteran must be provided a VA examination to assess the etiology of his hypertension. Also, the Veteran, through his representative, suggests that his current hypertension may be caused, or aggravated, by his diabetes mellitus, type II, and/or PTSD. See October 2017 Appellate Brief. Thus, a secondary service connection opinion must be provided regarding whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus type II and/or PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. 2. After the above records request has been completed, to the extent possible, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension had its onset during or within one year of active service, or is otherwise related to active service, to include his conceded in-service exposure to herbicide agents. The examiner is advised that the Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide agent exposure. The Agent Orange Updates speak to associations between exposure to chemicals and health outcomes in human populations, and not to the likelihood that any individual's health problem is associated with or caused by the herbicides in question. Thus, the question here is what is the likelihood that this Veteran's hypertension is related to his herbicide agents exposure given his medical history, family history, risk factors, etc. b) The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension was caused, or aggravated, by his service-connected diabetes mellitus, type II, and/or PTSD. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner is also advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing all indicated development, readjudicate the claim of entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure or to the service-connected diabetes mellitus, type II, and/or the service-connected PTSD. If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a VA medical examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court are to be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs