Citation Nr: 1806015 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-27 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement service connection for bilateral tinnitus. 3. Entitlement to service connection for a right lower extremity condition to include peripheral neuropathy, varicose veins, venous stasis, and tinea changes. 4. Entitlement to service connection for a left lower extremity condition to include peripheral neuropathy, varicose veins, venous stasis, and tinea changes. 5. Entitlement to service connection for residuals of a bilateral hand injury to include bilateral peripheral neuropathy. 6. Entitlement to service connection for residuals of a traumatic brain injury (TBI) to include headaches and short term memory loss. 7. Entitlement to service connection for bilateral carpal tunnel syndrome. 8. Entitlement to service connection for a low back condition. 9. Entitlement to service connection for major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1971 to February 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in May 2017. A transcript of that hearing has been associated with the claims file. Due to the content of the Veteran's Board hearing testimony and a review of the record, the Board has recharacterized the Veteran's claim for a bilateral hand injury and bilateral upper extremity peripheral neuropathy as one claim for entitlement to service connection for a bilateral hand injury to include bilateral upper extremity peripheral neuropathy. Likewise, the Board has also recharacterized the Veteran's TBI residual claims and short term memory loss claim as one claim for entitlement to service connection for TBI residuals to include headaches and short term memory loss. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Other than bilateral hearing loss and tinnitus, all other issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Bilateral hearing loss is attributable to active duty service. 2. Tinnitus is attributable to active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred during active duty service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2017). 2. Tinnitus was incurred during active duty service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his service connection claims. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary. II. Entitlement to Service Connection for Bilateral Hearing Loss and Tinnitus The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Additionally, when the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For hearing loss claims, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, VA has identified certain chronic diseases for which medical nexus may be presumed if certain criteria are met; tinnitus and sensorineural hearing loss are considered to be such chronic diseases because they are "organic diseases of the nervous system." 38 C.F.R. §§ 3.303(a), (b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's September 2010 VA examination results are consistent with impaired hearing disability as defined by 38 C.F.R. § 3.385. Additionally, the Veteran stated at his hearing that he was exposed to a lot of loud noise in service operating anti-aircraft guns and on the shooting range; he indicated that he was provided hearing protection during basic training but does not remember having any hearing protection while on permanent duty. The Veteran explained that he was a gunner as a Vulcan crewman during service; this is consistent with his personnel records. As for post-service noise exposure the Veteran explained that he worked at a foundry and then at an auto-mechanic parts factory but that he was provided hearing protection and his hearing was tested twice a year, but that he was not given the results. He stated that he noticed that his hearing had declined in his left ear prior to beginning work at the foundry because he had to turn his head to hear out of his left ear well. In addition to noise exposure the Veteran stated that he noticed tinnitus during service, particularly after the hatch of a tank hit him on the head while he was wearing a "steel pot." A September 2010 etiology opinion confirmed the Veteran's diagnosis of sensorineural hearing loss and his reports of tinnitus but declined to provide a positive etiology opinion because there was a lack of in-service complaints of noise exposure, hearing loss, or tinnitus and because the Veteran did not provide a date and circumstances as to the onset of his symptoms-stating only that he had had his hearing loss and tinnitus symptoms for a long time. The examiner did note that the Veteran reported being hit in the head by a Vulcan hatch. The examiner indicated that the Veteran's auditory thresholds as recorded at the time of separation from service were not reliable. The examiner also noted a current complaint of tinnitus symptoms. Given that the Veteran's hearing loss diagnosis and his competent and credible lay statements and corroborating personnel records establishing in-service noise exposure, the Board finds that the first two elements of service connection are met. Additionally, although contemporaneous medical records documenting an initial diagnosis of hearing loss in service is unavailable, the Board finds that the Veteran's lay statements provide competent and credible lay evidence of continuity of symptoms. Accordingly, the Board finds that the Veteran must be afforded the benefit of the doubt, and finds that an award of service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). As for the Veteran's bilateral tinnitus symptoms and their reported onset, as noted by the United States Court of Appeals for Veterans Claims (Court), VA has acknowledged that "tinnitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss," and that "acoustic trauma is the most common cause of tinnitus." See Fountain v. McDonald, 27 Vet. App. 258, 267 (2015) (citing U.S. Dep't of Veterans Affairs, Veterans Benefits Admin., Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus (2010)). As such, the Veteran is competent to report the nature of his tinnitus symptoms because they are subjective in nature and therefore do not require any specialized medical expertise to identify or describe. As for credibility, although the Veteran may have initially failed to identify an exact date of onset at his VA examination, he affirmatively reported onset of tinnitus symptoms in service at his hearing, and his hearing testimony is not inconsistent with his earlier description of onset. Accordingly, the Board finds that the Veteran must be afforded the benefit of the doubt, and finds that an award of service connection for tinnitus is warranted. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306, 3.385 (2017). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. At his Board hearing the Veteran reported pain in his bilateral upper extremities. He related this to an incident during his active duty service in which an extremely heavy hatch close on him, hitting him in the head while his helmet was on, closing on both of his hands, and driving his shoulders down, and injuring his back and shoulders. The Veteran explained that he was forced down into the tank as result of the hatch closing on him. An October 1971 service treatment record denotes that the Veteran had all four fingers of an unspecified hand mashed on a tank hatch cover. The Veteran also stated that he occasionally got trigger finger. Additionally, the Veteran reported bilateral leg pain during active duty service as well as having developed small spider veins on his feet during active duty service. The Veteran reported that he has diabetes, and his VA treatment records document that he reported having diabetes for 20 years prior to commencing health care treatment through VA in 2010. Moreover, with regard to back and leg pain, November 1972 service treatment records note a complaints of leg pain that started in the low back and radiated down the left leg; the Veteran reported that this pain had been present since a 1968 motorcycle accident prior to the Veteran's active duty service. Although the Veteran reported painful joints at his September 1970 pre-induction medical examination, his musculoskeletal system was found to have been normal. VA treatment records document the presence of varicose veins, venous stasis, and tinea changes in the bilateral lower extremities. The Veteran also reported that he had been diagnosed with carpal tunnel syndrome, and that he was informed that this was due to repetitive activities with his hands and that he had engaged in repetitive activities with his hands during active duty service. VA treatment records document a past medical history of bilateral carpal tunnel syndrome, with possible surgical intervention. As for TBI residuals, the Veteran attributed short term memory issues and headaches to the hatch incident described above. Finally, the Veteran reported that during basic training he had become depressed and starting drinking due to verbal abuse from sergeants. The Veteran reported that he got into drugs when he was overseas in Germany, and his wife reported that he had been completely different after he got home from Germany, including being short tempered, and not being interested in doing anything. The Veteran stated that he starting seeking mental health service through private physicians on and off from 1973 onwards. The Veteran reported private treatment from several private physicians for the conditions being remanded including from doctors identified as Dr. S. G. and Dr. R. B., and at the Fisher Titus Hospital. He explained that these doctors had sent in medical records in support of the Veteran's disability application with the Social Security Administration (SSA). VA treatment records indicate that the Veteran reported getting SSA benefits for his back condition. A September 2010 VA examination noted that diagnostic X-rays documented anterior osteophytes at the L1-L2 and prominent anterolateral osteophyte formation in the mid to lower thoracic spine at multiple levels. First, based on the Veteran's hearing testimony and other relevant evidence as discussed above, the Board finds that there is sufficient evidence in support of the first two elements of service connection for bilateral hand, bilateral lower extremity, TBI residuals, bilateral carpal tunnel syndrome, and major depressive disorder claims to trigger VA's duty to provide the Veteran with a VA examination and responsive etiology opinions. As for the Veteran's lumbar spine claim, the Board notes that the Veteran was already provided a VA examination and etiology opinion in September 2010. However, this examination was completed without the benefit of review of outstanding private treatment and SSA records. As such, on remand, another VA examination should be conducted after outstanding records discussed further below have been procured. Moreover, the etiology opinions procured should address the possibility of a preexisting low back condition and aggravation of that preexisting condition, as the Veteran is entitled to the presumption of soundness based on his pre-induction examination. 38 U.S.C. § 1111 (2012). Finally, as a review of the record reveals that there are outstanding VA treatment records, private treatment records, and SSA treatment records, on remand records in the constructive possession of VA should be procured, and the AOJ should make efforts to procure any outstanding private treatment records relevant to the appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records relevant to the claims being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Obtain the Veteran's outstanding SSA records relevant to the claims being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 3. Procure the Veteran's private treatment records from the physicians listed in the June 2010 release authorization. Additionally, provide the Veteran with a release form for any other outstanding private medical records pertinent to his claimed disabilities. If he returns the requested information, attempt to obtain the records. If no records are available, the claims file must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran is advised that may need to submit a more recent release authorization in order for the outstanding private treatment records discussed at his Board hearing to be procured. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current right and left lower extremity conditions to include peripheral neuropathy, varicose veins, venous stasis, and tinea changes after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should review diagnose all current conditions of the bilateral lower extremities to include peripheral neuropathy, varicose veins, venous stasis, and tinea changes, and then provide the following opinions: i. For each diagnosed condition, is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; (2) is related to any in-service event or injury; or (3), for arthritis only, manifested within one year of active duty service. The examiner should discuss the Veteran's Board hearing testimony regarding the injury he sustained from a tank hatch and service treatment records regarding complaints of leg pain, as discussed above in the body of this remand. ii. Additionally, if the examiner finds that there is clear and unmistakable evidence of a preexisting condition, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that there is clear and unmistakable evidence that the preexisting condition was not aggravated beyond its natural progression during active duty service. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 5. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current bilateral hand conditions to include upper extremity peripheral neuropathy after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should review diagnose all current conditions of the bilateral upper extremities to include peripheral neuropathy, and then provide the following opinions: i. For each diagnosed condition, is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; (2) is related to any in-service event or injury; or (3), for arthritis only, manifested within one year of active duty service. The examiner should discuss the Veteran's Board hearing testimony regarding the injury he sustained from a tank hatch, as discussed above in the body of this remand. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 6. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current TBI residuals to include headaches and short term memory loss after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner conducting the TBI examination must be medical professional that VA has qualified to conduct such evaluations. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should diagnose all current TBI residuals, and then provide the following opinions: i. For each diagnosed TBI residual, is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; or (2) is related to any in-service event or injury. The examiner should discuss the Veteran's Board hearing testimony regarding the injury he sustained from a tank hatch, as discussed above in the body of this remand. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 7. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed bilateral carpal tunnel syndrome after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should diagnose any carpal tunnel syndrome if present and address the Veteran's reported past medical history of carpal tunnel syndrome, and then provide the following opinions: i. Is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; or (2) is related to any in-service event or injury. The examiner should discuss the Veteran's Board hearing testimony regarding the injury he sustained from a tank hatch, as discussed above in the body of this remand. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 8. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current low back conditions after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should diagnose all current low back conditions, and then provide the following opinions: i. For each diagnosed low back condition, is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; (2) is related to any in-service event or injury; or (3), for arthritis only, manifested within one year of active duty service. The examiner should discuss the Veteran's Board hearing testimony regarding the injury he sustained from a tank hatch, as discussed above in the body of this remand. ii. Additionally, if the examiner finds that there is clear and unmistakable evidence of preexisting condition, the examiner must opine whether there is also clear and unmistakable evidence that the condition was not aggravated beyond its natural progression during active duty service. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 9. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disorder to include depression after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should confirm all diagnosed mental health conditions, and then provide the following opinions: i. For each diagnosed mental health condition, is it is at least as likely as not (50 percent or greater probability) that the condition: (1) began during active service; (2) is related to any in-service event or injury; or (3) (for any diagnosed psychosis) manifested within one year of active duty service. The examiner should discuss the Veteran's Board hearing testimony regarding verbal abuse and using drugs during service, as well as his spouse's testimony regarding the changes she observed in the Veteran's behavior after returning home from active duty service. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 10. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 11. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 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 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs