Citation Nr: 1801115	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  15-37 245	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for an acquired psychiatric disability, to include consideration of posttraumatic stress disorder (PTSD) and depression.

4.  Entitlement to an increased initial rating for left knee.

5.  Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Cheryl King, Agent



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Gibson


INTRODUCTION

The Veteran served on active duty from March 1974 to May 1978.

This appeal to the Board of Veterans' Appeals (Board) is from March 2011 and July 2012 decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes the March 2011 rating decision granted service connection for the left knee.  The Veteran filed a statement in February 2012 asking for a higher rating, which the RO construed as a new claim.  In an attempt to maximize the Veteran's benefits, the Board construes this February 2012 statement as a notice of disagreement (NOD) to the initial rating assigned to the left knee.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008).

The Board also notes the Veteran filed a NOD to all issues on the July 2012 decision, including consideration of entitlement to service connection for a right hand disability.  The RO granted service connection for right middle finger ankylosis in an August 2015 decision, just prior to the September 2015 statement of the case (SOC).  In September 2016, the Veteran filed a notice of disagreement (NOD) to the August 2015 decision, arguing that the issue was on appeal and should have been a part of the September 2015 SOC.  Unfortunately, the September 2016 NOD regarding the rating assigned to the right middle finger is untimely.  Once service connection is granted while on appellate status, an additional NOD must be filed to disagree with any downstream issues, such as the assigned rating or effective date.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  The Veteran is advised to file a claim for an increased rating for the right middle finger.

In September 2016, the Veteran had a personal hearing before the undersigned VLJ.

In this decision, the Board is granting service connection for tinnitus.  The remaining issues are REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development.


FINDING OF FACT

In resolving all doubt in his favor, the Veteran' tinnitus incepted during service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. § 1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017).  

Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004).

Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007).  Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  Charles v. Principi, 16 Vet. App. 370 (2002).  

The record shows a tinnitus diagnosis.

The Veteran asserts he has had tinnitus since his service.  During his hearing, he said he was exposed to noise as an engineer in the engine room.  He said that he did not complain about the symptoms while in service, but that he remembered having ringing in his ears before separation.  

The VA examiner opined that tinnitus was less likely related to service, because the Veteran reported an onset in the 2000s, after separation.  He opined it was more likely related to his hearing loss, which he did not find related to service.  The examiner did not consider the Veteran's noise exposure.

After review of this evidence, the Board finds that all doubt should be resolved in the Veteran's favor, and that service connection is established for tinnitus.  Although he reported a later onset date during his VA examination, the Board notes this examination form was completed by the examiner, and it is not clear that this is actually what the Veteran said.  During his hearing, he reported that he could not provide a concrete date but that he remembered having the symptoms while still in service.  The Board finds this testimony to be more probative than the examination report, which does not consider all of the evidence.  Accordingly, as tinnitus is capable of lay identification, and the Board finds the Veteran's testimony as to onset as credible, then service connection for tinnitus is warranted.




ORDER

Service connection is granted for tinnitus.


REMAND

The Veteran's remaining claims require additional development.

In regard to bilateral hearing loss, the March 2012 VA examiner noted that he had a whisper test upon separation, which "is not frequency or threshold specific."  He noted that the Veteran reported wearing hearing protecting during his service, and opined that hearing loss was less likely related to service because of that.  The Veteran has asserted that he had trouble hearing during his service, which the examiner did not adequately consider, especially in light of the comment about the specificity of whisper tests.  Further, the record contains two other audiograms, one in December 1976 and one undated, which were not considered.  An updated VA examination is required.

In regard to an acquired psychiatric disability, his records show mental health symptoms and referrals for treatment.  He must be given a VA examination for diagnosis and opinion as to relationship to service.

In regard to his left knee, an updated VA examination must be conducted, as described below.  The record also shows that he had physical therapy with a private physical therapist, whose records should be obtained.

His claim for TDIU is inextricably intertwined with the other claims, and must be remanded.  The Board notes that this claim has not been adequately developed, which shall also be accomplished on remand.




Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and conduct the appropriate development.

Ask the Veteran to authorize VA to obtain records of private physical therapy treatment of the left knee.

2.  Schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (at least 50 percent probability) that hearing loss is related to service.  

The Veteran reports noise exposure as an engineer in the engine room, and that he experienced hearing loss symptoms during service.  The VA examiner indicated he said he wore hearing protection, and opined that his hearing loss was not related to service because he had hearing protection.  He did not adequately discuss the Veteran's complaints of hearing loss while in service, which are supported by an undated audiogram that appears to show a threshold shift from the June 1974 examination.  

The examiner is asked to review the relevant literature and provide comment on the validity of whispered word hearing tests.  The examiner is also asked to provide comment regarding the type of hearing protecting the Veteran reports to have used.

The examiner is asked to provide comment on the impact, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the following:  

a. "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). - J Neurosci. 2006 Feb 15; 26(7): 2115-2123. 

b. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. 

c. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616.

d. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586.

All opinions are to be supported with explanatory rationale.

3.  Schedule an appropriate examination for an opinion on whether the Veteran meets the diagnostic criteria for any acquired psychiatric disability, but to also include specific consideration of depression and posttraumatic stress disorder (PTSD).  To that end, all appropriate diagnostic tests should be administered and interpreted.  

The examiner is also asked to render an opinion as to whether it is as likely as not (at least 50 percent probability) that it is related to service.  The Veteran reports that he was traumatized by an incident wherein he was on a team that had to retrieve the body of someone who had fallen overboard.  The examiner is asked to elicit details from the Veteran regarding this incident and his symptoms since that time.

4.  Schedule the Veteran for an updated VA examination for a report on the current severity of his chronic left knee strain and residuals of fracture.  

Conduct range of motion testing, and indicate the point at which motion pain is objectively observed. The examiner is asked to test range of motion in active motion and passive motion, in both weight-bearing and non-weight-bearing positions.  If the examiner is unable to conduct the required testing or concludes that the required testing is not capable of being conducted, he or she should clearly explain why that is so.

The examiner is asked to describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, or is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation.  The examiner is also asked to elicit from the Veteran a detailed history of his symptoms during flares and after repeated use, including estimates of additional loss of motion, which can be used to inform such an opinion.  The examiner is asked to provide an opinion on whether it is as likely as not (at least 50 percent probability) that the Veteran's functional loss closely approximates having flexion limited to 30 degrees or less, or extension limited to 15 degrees or more.

The Veteran has complained of flares, and attempt should be made to schedule the examination during a flare.  However, the examiner is advised that direct observation of impairment during a flare is not a prerequisite to offering an opinion.  Therefore, to reiterate, it is essential that the examiner elicit from the Veteran details regarding his flares, including their frequency and their impact on his function.  

Provide an opinion regarding whether the Veteran has instability or recurrent subluxation.  

Provide an opinion as to whether the Veteran has locking or other symptoms of dislocated cartilage.  The record shows some effusion on MRI.

All opinions must be supported by explanatory rationale.

5.  Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal.  If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response.  Thereafter, return the file to the Board for further appellate consideration.

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).

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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs