Citation Nr: 1804912 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-11 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right hand injury. 4. Entitlement to service connection for right knee injury. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as breathing problems. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran withdrew the appeal for entitlement to service connection for bilateral hearing loss, by way of verbal testimony that has been accurately transcribed and incorporated with the Veteran's claims file. See October 2017 Board Hearing Transcript, 2-3. Accordingly, the Board finds that the criteria for withdrawal of an appeal with regard to this claim have been met. 38 C.F.R. § 20.204 (b) (2017). When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to the determinations that had been previously appealed. Consequently, in such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C.A. § 7105 (d) (2015). Accordingly, the claim for entitlement to service connection for bilateral hearing loss is dismissed. Id. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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) (West 2012). The issues of entitlement to service connection for a right hand condition and right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Tinnitus originally manifested during service. 2. Resolving all doubt in the Veteran's favor, the currently diagnosed COPD is etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 2. The criteria for entitlement to service connection for COPD have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Tinnitus Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, including tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and that it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran's service treatment records do not refer to tinnitus or ringing of the ears. The Veteran's DD214 states that his MOS was a Motor Vehicle Operator. In December 2016, the Veteran underwent VA examination to determine the nature and etiology of his tinnitus. The VA examiner diagnosed the Veteran with tinnitus and opined that it was less likely than not caused by his military service. The rationale provided was that because acoustic trauma could not be conceded, it was less likely than not that the Veteran's tinnitus was a result of military noise exposure. In the October 2017 Video Conference Hearing, the Veteran testified that while stationed in support of Operation Desert Storm he kept a journal. The Veteran indicated that he first noticed ringing in his ears January 7, 1991. He further indicated that he was around constant noise from artillery bombing at the time. Finally, the Veteran indicated that the tinnitus has been constant since service. The Board first finds the December 2016 VA examination inadequate because the report contains conflicting findings pertinent to the claim. Specifically, the VA examiner first found that the Veteran's MOS of Motor Transport conceded a moderate probability for hazardous noise. However, the VA examiner then found acoustic trauma could not be conceded. These conflicting statements render the VA examiner's rationale inadequate and therefore the examination is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that, when VA undertakes to provide a veteran with an examination, that examination must be adequate for VA purposes). However, as discussed above, the Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Board finds it probative that the Veteran kept contemporaneous records during his deployment and was able to report both the onset date and the continuous symptoms associated with his tinnitus. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current tinnitus. However, given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. COPD Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's January 1990 examination revealed no condition of the lungs or chest. A March 1991 entry in the Veteran's personnel record indicated that the Veteran was deployed with the 2d Marine Division during Deseret Storm to Kuwait in the February-March 1991 time period. The entry further indicated that because of the Veteran's period and location of deployment, that he was exposed to heavy atmospheric smoke generated because of numerous oil-well fires. On a February 1993 military examination, the Veteran indicated he had shortness of breath while sleeping. The military examiner indicated that the Veteran had episodes of breathing problems and was a registered Desert Storm Veteran. In May 2012, the Veteran filed for service connection for breathing problems. In October 2013, the RO denied the claim and this appeal followed. In December 2016, the Veteran underwent a VA examination to determine the nature and etiology of any breathing problems. The Veteran reported problems breathing and sleeping with visits to the hospital for wheezing. The VA examiner diagnosed the Veteran with COPD. The VA examiner then indicated it was at least as likely as not that the Veteran's COPD was incurred in or caused by his active military service. The rationale provided was that the Veteran had potential respiratory exposure while in the Persian Gulf. In the October 2017 Video Conference Hearing, the Veteran testified that while deployed in support of Operation Desert Storm he began to experience breathing problems. The Veteran reported frequent productive coughing that began in his second month of deployment and has continued since. The Board first finds that the Veteran has a current respiratory disability. Specifically, the December 2016 VA examiner diagnosed the Veteran with COPD. Next, the March 1991 entry in the Veteran's personnel record indicated that the Veterans was exposed to heavy atmospheric smoke generated because of numerous oil-well fires. Further, the Veteran reported that he began experiencing breathing difficulties during service. The Veteran is competent to report that he began to experience breathing problems in service that have continued to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). Finally, the December 2016 VA examiner opined that it was at least likely as not that the Veteran's COPD was incurred in or caused by his active military service. The VA examination reflects a review of the Veteran's service treatment records, post-service treatment records, and lay statements of the Veteran. Its opinions, as a whole, consider all the pertinent evidence of record and provide rationales for the opinions stated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds the December 2016 VA examination probative, and adequate for granting service connection. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current COPD. However, given the existence of the evidence in favor of the claim, the Board concludes that service connection is now warranted for COPD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDERS Service connection for tinnitus is granted. Service connection for COPD is granted. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, the Veteran has not been afforded VA examinations for the claimed right knee condition or right hand. As such, remand for VA examinations is necessary. Next, there is a single DD 214 of record indicating that the Veteran had active service from December 1990 to May 1991. However, there are medical records associated with the claims file outside of those date indicating additional service outside the dates on the DD214. In light of the foregoing, the Board finds that a remand is necessary to verify the Veteran's periods of service, including any periods of ACDUTRA and INACDUTRA, and to obtain all STRs, if any, from those periods. Additionally, in a statement received in May 2013 the Veteran reported that he injured his hand while in Southwest Asia and was subsequently placed on light duty. The complete personnel records have not yet been obtained and should be associated with the claims file. 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. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any right hand or right knee treatment. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Undertake appropriate action to obtain the Veteran's complete service personnel records. If no additional service personnel records are located, a written statement to that effect should be incorporated into the record. 3. Undertake appropriate action to attempt to verify the Veteran's periods of ACDUTRA and INACDUTRA with the USMC Reserves, to include the precise dates of each. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Request from the National Personnel Records Center (NPRC), the Veteran's, service treatment records for each identified period of ACDUTRA in the USMC Reserves. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 5. After any records requested above have been associated with the electronic claims file, schedule the Veteran for an orthopedic examination to ascertain the nature and etiology of any right hand disabilities. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide opinions that respond to the following: Does the Veteran have a right hand disability? If yes, the examiner should identify the specific disorder(s) and provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder(s) is(are) etiologically related to the Veteran's active military service. The examiner must discuss the lay testimony of in-service treatment for the right hand including wrapping the hand and reports of continuous symptoms since service. 6. Then, schedule the Veteran for an orthopedic examination to ascertain the nature and likely etiology of any right knee disabilities. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide opinions that respond to the following: Does the Veteran have a right knee disability? If yes, whether it is at least as likely as not (a 50 percent or greater probability) that any currently present right knee disabilities are etiologically related to a period of active service or period of ACDUTRA? The examiner must discuss the September 1991 and May 1994 treatment for right knee pain. Additionally, the examiner must discuss the lay testimony of continuous symptoms since service. A rationale should be given for all opinions and conclusions rendered. 7. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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 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 (West 2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs