Citation Nr: 1800716 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-23 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a disability of the hands, to include arthritis. REPRESENTATION Appellant represented by: Fleet Reserve Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from January 1960 to January 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2017; a transcript of the hearing has been made of record. The issues of entitlement to service connection for a cervical spine disability, headaches, and arthritis are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT Resolving all reasonable doubt in favor of the Veteran, the probative evidence of record shows that the Veteran has continuously had symptoms of tinnitus since service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have been met. 38 U.S.C.A. §§1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that tinnitus is the result of noise exposure during active service. Specifically, he claims that he was exposed to aircraft noise in service, and that he began experiencing ringing in the ears during active service, which has continued to the present. A review of the competent evidence of record shows the Veteran has credibly reported symptoms of tinnitus continuously since service. Therefore, the Board finds that tinnitus can be service-connected based on continuity of symptomatology. Therefore, the claim for service connection for tinnitus must be granted. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§1110 (West 2014). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Tinnitus, as an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. §3.309(a), the Board finds that continuity of symptomatology may establish relationship to service. 38 C.F.R. §3.303(b) (2017). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. §3.102 (2017). Here, the Board finds that the Veteran, as a lay person, is both credible and competent to speak to the medical condition of tinnitus, and the fact that it has been continuous since active service. Specifically, the Board finds that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition in which requires specialize medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A lay person, such as the Veteran, may competently speak to the fact that he perceives ringing in his ears. Similarly, the Veteran may also competently speak to the fact of when that condition started and if it has continued to the present. The Veteran has consistently asserted that he began experience ringing in the ears during service as a result of loud conditions while working on the flight-line around aircraft during active service. The Board notes that noise exposure has been conceded by VA. The Board also finds that the Veteran's lay statements regarding the continuity of tinnitus symptoms to be credible. The Board notes that the Veteran has consistently noted that the ringing in the ears began during service and that those symptoms have continued to the present. He has provided that testimony during hearings before the Board, during medical examinations, and in written statements to VA. The Board finds the Veteran credible with regard to the assertions of continuity of tinnitus symptomatology since service. Therefore, based on the evidence and arguments presented, the Board finds that the Veteran's tinnitus was present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran's lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. §5107 (West 2014); 38 C.F.R. §§3.102 , 3.303(b) (2017). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board finds that additional development is required for the remaining claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. With regard to the claim for service connection for a cervical spine disability and headaches, the Board notes that the Veteran was provided a VA examination for those disabilities in June 2015. However, after a review of the examination reports, the Board finds that none of the examination reports speak to the etiology of any of the diagnosed disabilities. Therefore, the Board finds those examination reports to be incomplete. When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Consequently, additional development is required for the Board to fulfill its duty to the Veteran. With regard to the claim for service connection for a hand disability, the Veteran has not been provided an examination to ascertain the nature or etiology of the claimed disability. The Veteran has continuously asserted, to include explicitly during a hearing before the undersigned, that he has pain and deformity in the hand joints. The Veteran has asserted that he has had pain since a burn incident during service, where he severely burned his hands while working on an airplane engine. A review of the service medical records confirms that in-service incident. The Board notes that VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. §5103A(d) (West 2014); 38 C.F.R. §3.159(c)(4) (2017); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that evidence has been submitted to suggest a potential nexus for a claimed hand disability in the Veteran's lay statements and testimony. While the Board acknowledges that lay statements may not be competent to be dispositive of the claim, that evidence is sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians for treatment not already of record. 3. Schedule the Veteran for a VA examination of the cervical spine. The examiner must review the claims file and should note that review in the report. The report should discuss the nature and etiology of any cervical spine disability found and address whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disability is related to or caused by any aspect of active service. The examiner must consider the Veteran's lay statement of symptoms during and directly after service, especially after a 1962 automobile accident. The examiner should consider and discuss the Veteran's service records, VA medical records, and any other relevant information. 4. Schedule the Veteran for a VA examination of headaches. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any headache disability is related to service or any incident of service. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that any headache disability is due to or the result of any service-connected disability, to include service-connected tinnitus. The examiner should further opine whether it is at least as likely as not (50 percent probability or greater) that if any headache disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability, to include tinnitus. 5. Then, schedule the Veteran for a VA examination of the hands. The examiner must review the claims file and should note that review in the report. The report should discuss the nature and etiology of any hand disability and address whether it is at least as likely as not (50 percent or greater probability) that any hand disability is related to or caused by any aspect of active service, to include a burn injury during service. The examiner must consider the Veteran's lay statements of symptoms during and directly after service, especially after a 1962 automobile accident, and documented burns in 1963. The examiner should also opine whether there are any residuals of the burns during service in 1963. The examiner should consider and discuss the Veteran's service records, VA medical records, and any other relevant information. 6. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs