Citation Nr: 18145094 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-02 115 DATE: October 30, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for asbestosis is remanded. FINDING OF FACT The Veteran’s current tinnitus began in and has continued since service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision. The Veteran testified at a Board hearing in July 2018. 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is related to noise exposure in service. The Veteran served in the Navy. His DD Form 214 indicates that his military occupationally specialty (MOS) was able seaman. At his July 2018 Board hearing, the Veteran indicated that his duties included being a first loader on a 3”/50 caliber gun. He asserts that he experienced acoustic trauma in this context. The Board finds that the Veteran’s report of hazardous noise exposure is consistent with the places, types, and circumstances of the Veteran’s service. As such, acoustic trauma in service is established by competent and credible evidence. The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, it was noted as chronic in service, and there has been continuity of the same symptomatology since service. A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112, 1137; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (finding tinnitus to be an “organic disease of the nervous system,” which is listed in 38 C.F.R. § 3.309(a)). The Veteran is competent to identify tinnitus, as this condition is observable by his own senses, and to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the preponderance of the evidence establishes that the Veteran has had recurrent tinnitus since service. See July 2018 Board hearing transcript. As the evidence establishes that the Veteran has tinnitus and that there has been a continuity of symptomatology since service for a chronic disease, the Board finds that the criteria for service connection for tinnitus have been met. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran seeks service connection for a back disability. Private treatment records show treatment for lumbago, and a September 2011 MRI report reflects a finding of broad-based intervertebral disc herniations at L3/4, L4/5, and L5/S1 causing bilateral mild to moderate neural foraminal stenosis as well as mild central canal stenosis. The Veteran asserts that he injured his back during a slip and fall in service, and that he has had back problems ever since. Regarding the in-service injury, at his Board hearing he testified that, while stationed in Charleston, South Carolina, he slipped while coming off a barge, fell, and landed on his back on a lower barge. At the Board hearing, the Veteran stated that he fell six feet; an August 2018 private nexus statement indicates that the Veteran reported a 10-foot fall. The Veteran further stated that he has had back problems ever since, but acknowledged that he did not think about them too much, as the symptoms would come and go. He reported a history of chiropractic treatment going back 20 years, possibly more. In September 2018, the Veteran submitted a nexus statement dated August 2018 from Dr. CVM, a family physician. Dr. CVM opined that the Veteran’s low back pain is the direct result of the Veteran’s reported in-service back injury. Unfortunately, the author did not provide a detailed rationale for his opinion. The Board cannot make a fully-informed decision on the issue of service connection for a lumbar spine disability because no VA examiner has opined whether the currently diagnosed lumbar spine disability is related to the reported injury in service. As there is some indication that the claimed disability may be associated with service, the Board finds that a VA examination is warranted. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. A January 2012 private ENT report reflects a finding a severe to profound mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear. A concurrent audiogram appears to show a hearing loss disability for VA purposes. The Veteran asserts that his bilateral hearing loss is related to noise exposure in service. The Veteran has reported hazardous exposure to noise from artillery fire. At his July 2018 Board hearing, the Veteran indicated that his duties included being a first loader on a 3”/50 caliber gun. He asserts that he experienced acoustic trauma in this context. The Veteran’s report of hazardous noise exposure is consistent with the places, types, and circumstances of the Veteran’s service. As such, acoustic trauma in service is established by competent and credible evidence. The Veteran has further testified that he experienced hearing loss throughout service, to include a one- to two-week period during which he had significant hearing impairment. He has also reported a ruptured ear drum in service. In this regard, he stated that at present he occasionally experiences vertigo. In September 2018, the Veteran submitted a nexus statement dated August 2018 from Dr. CVM, a family physician. Dr. CVM opined that the Veteran’s bilateral hearing loss is the direct result of the Veteran’s noise exposure in service. Unfortunately, the author did not provide a detailed rationale for his opinion. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because no VA examiner has opined whether any current hearing loss disability is related to noise exposure in service. As there is some indication that the claimed disability may be associated with service, the Board finds that a VA examination is warranted. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for asbestosis is remanded. The Veteran seeks service connection for a respiratory disability, claimed as asbestos. Private treatment records show a diagnosis of asbestosis. The Veteran asserts that he was exposed to asbestos while stationed aboard the USS Canisteo (AO-99). In this regard, he has stated that he was assigned to stencil steam flow lines, which were covered with decomposing asbestos. See March 2013 statement in support of claim; July 2018 Board hearing transcript, at 8. The Board finds that the Veteran’s report of asbestos exposure in service is consistent with the places, types, and circumstances of the Veteran’s service. In this regard, the Board notes that the Veteran served aboard a World War II-era Navy ship. Furthermore, he has submitted competent and credible lay evidence that effectively establishes occupational exposure to asbestos in service. Notwithstanding, there is some evidence suggesting that the Veteran might have also had occupational asbestos exposure after service. Specifically, a statement from Dr. SSH (received in January 2013) appears to indicate that the Veteran worked a ship rigger and ship surveyor after service. Additionally, private treatment records from late 2012 (received in January 2013) indicate that the Veteran was exposed to asbestos at work, but do not provide any details. In September 2018, the Veteran submitted a nexus statement dated August 2018 from Dr. CVM, a family physician. Dr. CVM opined that the Veteran’s bilateral asbestos is the direct result of the Veteran’s asbestos exposure in service. Unfortunately, the author did not provide a detailed rationale for his opinion. The Board cannot make a fully-informed decision on the issue of service connection for asbestosis because no VA examiner has opined whether any current respiratory disability is related to asbestos exposure in service. As there is some indication that the claimed disability may be associated with service, the Board finds that a VA examination is warranted. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). At the July 2018 Board hearing, the Veteran reported that he was receiving treatment for his asbestos from a new treatment provider (identified as the DaVita Medical Group). See July 2018 Board hearing transcript, at 9. Although the abovementioned August 2018 nexus statement appear to be from this provider, no treatment records have been received. On remand, VA must take appropriate action to obtain authorization and request any outstanding treatment records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the DaVita Medical Group, referenced in the July 2018 Board hearing. Make two requests for the authorized records from the DaVita Medical Group, unless it is clear after the first request that a second request would be futile. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The examiner must opine whether any current lumbar spine disability is at least as likely as not related to an in-service injury or disease, including the slip and fall reported by the Veteran at the July 2018 Board hearing. 3. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability. The examiner must opine whether any current bilateral hearing loss disability is at least as likely as not related to hazardous noise exposure in service. The examiner must accept the Veteran’s report of exposure to noise from artillery fire as credible evidence of acoustic trauma in service. The examiner must also consider the Veteran’s report of an episode of significant hearing impairment and ruptured ear drum in service. Finally, the Board acknowledges that the Veteran’s separation examination does not contain audiogram scores. The examiner should do his or her best to provide an adequate opinion, notwithstanding the unavailability of such scores. Any negative opinion should not be based solely on the absence of evidence of hearing loss at separation. 4. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disability associated with asbestos exposure. The examiner must opine whether any such respiratory disability is at least as likely as not related to the Veteran’s occupational exposure to asbestos in service. The examiner should be aware that Board has conceded asbestos exposure in service based on competent and credible lay evidence. See March 2013 statement; July 2018 Board hearing transcript. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel