Citation Nr: 1758070	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  09-19 413	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a left leg disability, to include a left knee disability.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Garcia, Associate Counsel




INTRODUCTION

The Veteran served on active duty with the Philippine Guerilla and Regular Philippine Army from January 1944 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In July 2010, the Board remanded the case to afford the Veteran a hearing before the Board since the Veteran requested a hearing before a Veterans Law Judge (VLO) in his substantive appeal received in May 2009.  In September 2015, the Board remanded the case again because the Agency of Original Jurisdiction (AOJ) failed to comply with the Board's prior remand directive of affording the Veteran a hearing.  In March 2017, the Veteran withdrew his request for a hearing and requested that the Board make a decision on his claims currently on appeal based on the evidence of record.  See March 2017 VA Form 21-4138, Statement in Support of Claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for a left leg disability, to include a left knee disability being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred during military service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection for Tinnitus

The Veteran contends that his tinnitus is a result of his duties while serving during the World War II era.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish service connection for a disability, there must be competent evidence of the following:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, 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).

When rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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).

As to the Veteran's current disability, the October 2008 VA examination documented reports of ringing in the Veteran's ears and loudness with an unknown onset that has been constant since 2001.  Thus, the Veteran meets the requirement of having a present disability for service connection.

As to the in-service incurrence element of direct service connection, the Veteran reports that he was exposed to frequent small arms fire and explosions that were typical of guerrilla combat.  See July 2008 VA Form 21-4138, Statement in Support of Claim.  This the Board finds to be not only competent and credible but highly probative because the Veteran was engaged in combat during his 11 month tour in service, and being engaged in combat would expose someone to gunfire, which is what the Veteran reports.  Because there is an approximate balance of positive and negative evidence regarding this element material to the determination of the Veteran's service connection claim, VA resolves reasonable doubt in favor of the claimant and the Board finds this element to be met.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

With regard to the nexus element of service connection, the 2008 VA examination revealed that the Veteran's reported tinnitus was not at least as likely as not caused by incidents of his military service.  The Board finds the medical opinion to be highly probative because the claims file was reviewed and the examiner provided reasoned rationales for the exact nature and etiology of the Veteran's claimed disability stating, inter alia, that tinnitus due to noise exposure has its onset immediately or shortly following the traumatic event.  However, as noted above, the Veteran completed an 11-month combat tour where he was exposed to frequent small arms fire and explosions that were typical of guerrilla combat causing him to have ringing in the ears.  See July 2008 VA Form 21-4138, Statement in Support of Claim.  The Board has reviewed the Veteran's claims file and finds that the medical opinions, the Veteran's military personnel records, and the Veteran's lay statements are at least in equipoise as to whether his tinnitus is related to his combat service.

Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is granted.


REMAND

The Veteran was diagnosed with left knee osteoarthritis as indicated by his VA medical records and June 2009 letter from his private medical provider.  There is competent evidence by the Veteran in his September 2007 lay statements in which he reports that he was patrolling in an area during service and ran for cover from a sniper and fell 15 feet into a precipice and hit a rock with his left leg first.  A January 2008 statement from a fellow service member reports that he saw the Veteran limping during service.  This evidence provides an indication that the Veteran's disability may be associated with his service.  In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The Board finds that the evidence of record with respect to the claim of entitlement for left leg disability triggers the necessity of an examination in order to decide the claim on the merits.  See 38 C.F.R. § 3.159(c).  Finally, on remand, VA should obtain any available updated VA treatment records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Any outstanding VA treatment records dated since June 2016 should be associated with the claims file.

2.  Schedule the Veteran for a VA examination to determine the etiology of his left leg disability, to include a left knee disability.

The examiner should review the claims folder and note such review in the examination report.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current arthritis in the left leg, to include the left knee, had its clinical onset or is otherwise related to the Veteran's military service.  If the left leg disability, to include the left knee disability, cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so.

A complete rationale should be given for all opinions and conclusions expressed.

The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions.  If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  After conducting any additional development deemed necessary, readjudicate the claim.  If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, allow the appropriate time for response, and thereafter return the case to the Board, if in order.

The Veteran 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. §§ 5109B, 7112.




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs