Citation Nr: 1800125 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-27 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right flank disability, to include a lipoma. 4. Entitlement to service connection for a heart disability to include congestive heart failure (CHF) and a rhythm disorder. REPRESENTATION Veteran represented by: Agent Gail Moore ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1945 to January 1947. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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). In a June 2015 written statement, the Veteran attempted to raise the issue of entitlement to service connection for asthma and chronic obstructive pulmonary disease (COPD). Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; now claims must be made on a specific form, which is available online or at the local RO. The Veteran is advised that if he wishes to open a claim, he may do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). The issues of entitlement to service connection for a heart condition, hearing loss disability, and tinnitus addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's right flank disability was incurred during active service. CONCLUSION OF LAW The criteria for service connection for a right flank disability, to include a lipoma, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Because the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist omission is harmless. The Veteran is claiming service connection for a right flank disability that he has described as a "painful knot." To prevail on a service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran's current diagnosis of a right flank lipoma began during active service. After a careful review of the evidence, the Board finds that it is as least as likely as not that the Veteran's right flank lipoma, although not formally diagnosed until after service, was incurred during active service. In reaching this conclusion, the Board finds the Veteran's written and oral statements competent, credible, and highly probative of the fact that he injured his right flank in service and this pain and an associated "knot," have continued since. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The same symptoms reported by the Veteran formed the basis of the April 2012 clinician's diagnosis of right flank lipoma. The Veteran also reported the continuity of these symptoms in September 2013 VA treatment records. In a July 2013 letter, the Veteran's personal physician also opined that the patient's active service injury caused his current right flank disability and associated pain and swelling. Because the weight of the evidence supports the Veteran's report that he incurred his current right flank disability during active service, service connection is warranted. ORDER Service connection for a right flank disability, to include a lipoma, is granted. REMAND At the outset, the Board notes the June 2015 letter from the National Personnel Records Center (NPRC) indicating that the Veteran's service treatment records (STRs) were likely destroyed by fire. As such, VA has a heightened duty to assist the Veteran in developing his claims and to discuss and evaluate the evidence. Hearing loss disability/Tinnitus The Veteran is claiming service connection for hearing loss disability and tinnitus due to noise exposure incurred while serving as a mechanic and loading airplanes during World War II. A remand is necessary to afford him a VA audiological examination to determine the nature and cause of any diagnosed hearing loss and/or tinnitus. Heart Condition The Veteran is claiming service connection for a heart disability to include CHF and a rhythm disability. He has specifically claimed that these conditions are due to solvent exposure during active service. A remand is necessary to afford him an examination to determine the nature and cause of any current heart disability. 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. Obtain for the claim file updated records of VA treatment the Veteran has received. 2. Ask the Veteran to identify all providers of evaluations or treatment he has received for the claims on appeal, to include UC Davis records relating to his heart disabilities. The AOJ should obtain for the record copies of the complete clinical records (i.e., any not already associated with the record) from the providers identified. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 3. Then, schedule the Veteran for a VA audiological examination with an appropriate examiner to determine the cause of his claimed bilateral hearing loss disability. The examiner must review the claims file including any new evidence obtained pursuant to the directives above. The examiner should elicit from the Veteran a complete history of his hearing loss, to include history of any military, occupational and recreational noise exposure and the circumstances, nature, and date of onset, all of which should be documented in the examination report. Please note the June 2015 NPRC letter indicating that the Veteran's STRs were likely destroyed by fire. As such, no STRs are available, and the Veteran's lay reports and other available evidence should be afforded heightened discussion and evaluation. Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following: a) Is there a 50 percent or greater probability (that is, is it at least as likely as not) that any diagnosed hearing loss is attributable to any incident of his military service to include excessive noise exposure? b) Is there a 50 percent or greater probability (that is, is it at least as likely as not) that tinnitus (if diagnosed) is attributable to any incident of his military service to include excessive noise exposure? A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and cause of his cardiac disabilities to include CHF and a rhythm disorder. The examiner must review the claims file, including any new evidence obtained pursuant to the directives above. Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following for each disability: is there a 50 percent or greater probability (that is, is it at least as likely as not) that the identified disability is related or attributable to his military service, including but not limited to solvent exposure as claimed by the Veteran in October and November 2014 written statements? Please also note the June 2015 NPRC letter indicating that the Veteran's STRs were likely destroyed by fire. As such, no STRs are available, and the Veteran's lay reports and other available evidence should be afforded heightened discussion and evaluation. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, after ensuring that the requested examinations comply with the remand specifications, and after any further development deemed necessary, readjudicate these claims. If these claims continue to be denied, send the Veteran and his agent a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs