Citation Nr: 18148765 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-41 310 DATE: November 8, 2018 ORDER Service connection for residuals of a heart attack is denied. Service connection for an artery block is denied. Service connection for hypertension is denied. Service connection for tinnitus is granted. REMANDED An initial disability rating in excess of 10 percent disabling for left shoulder impingement with arthroscopic subacromial abrasion and open coracoacromial ligament release is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran experienced a heart attack during active service, or that residuals of a heart attacks are related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that an artery block began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury or disease. 4. Resolving reasonable doubt in the Veteran’s favor, the Veteran has tinnitus which began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a heart attack are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for an artery block are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2013 and November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.   Service Connection To obtain service connection, the evidence must show: (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, i.e., a “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Residuals of a heart attack, artery block, and hypertension The Veteran contends that residuals of a heart attack, an artery block, and hypertension are the result of his active service. Specifically, the Veteran contends that, during his December 1989 separation examination, he was told that he had hypertension and that his post-service heart problems are related to his in-service hypertension. Service treatment records do not contain complaints, treatment, or diagnosis of a heart problem. Significantly, periodic examination reports dated in April 1970, October 1973, November 1973, January 1980, May 1984, January 1985, and October 1987 show a normal heart. Also, the Veteran’s service treatment records generally show normal blood pressure readings: 110/68 (April 1970), 108/80 (October 1973); 110/76 and 120/74 (November 1973); 120/86 (January 1980); 136/70 (May 1984); 120/74 (January 1985); 130/78 (October 1987). As to the Veteran’s December 1989 separation examination, this also shows a normal heart with a blood pressure reading of 118/60. Also, in a December 1989 report of medical history, the Veteran denied “palpitation or pounding heart,” “heart trouble,” and “high or low blood pressure.” The first indication of heart problems is a September 2003 private treatment record indicating the Veteran suffered an acute posterior myocardial infarction (heart attack) in June 2003 and was diagnosed with coronary artery disease and hypertension. In this case, while the medical evidence shows that the Veteran suffers from residuals of a heart attack, an artery block, and hypertension, the preponderance of the evidence is against finding that such began during active service, or are otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board finds no probative evidence that links the Veteran’s residuals of a heart attack, an artery block, and hypertension with service, and while the Veteran believes his heart problems are related to his active service, he is not competent to establish this nexus, because he is not shown to possess any medical expertise. Further, while the Board recognizes the Veteran’s representative contentions that he should be afforded a VA examination, the Board finds that the low bar of McClendon has not been met here. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). While the record reflects current disabilities, there is no evidence of heart problems in service, and no indication that the Veteran’s heart problems are related to his active service. The only evidence of a possible connection between the Veteran’s heart problems and his service are the Veteran’s own broad and conclusory statements that his December 1989 separation examiner told him that he had hypertension. However, this statement contradicts the written findings of the December 1989 separation examination and report of medical history. As such, the Veteran’s statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). The Board finds no credible evidence of in-service manifestation of heart problems persistent and/or recurrent symptoms of disability since service or competent evidence suggesting that residuals of a heart attack, an artery block, and/or hypertension are due to active service. With no probative evidence of heart problems in service or for years thereafter, and none which link the Veteran’s current heart disabilities with service, the greater weight of the evidence is against these claims. 2. Tinnitus The Veteran contends that his tinnitus is due to his military service. Specifically, in his March 2014 claim, the Veteran wrote that he was exposed to constant aircraft engine noise and has experienced tinnitus. The Veteran’s service personnel records confirm that the Veteran worked around aircraft and in-service noise exposure has been conceded. While the Veteran’s service treatment records are negative for complaints of tinnitus, they do show that the Veteran developed hearing loss during service. Significantly, service connection is currently in effect for bilateral hearing loss. In March 2014, the Veteran submitted a claim for service connection for tinnitus and he was afforded a VA audiological examination in October 2014. At the time of the examination, the Veteran reported that he first began experiencing tinnitus 20 to 30 years earlier which shows an onset sometime between 1984 and 1994, possibly during the Veteran’s service. The examiner diagnosed tinnitus and found that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure and a rationale that “he denied any ear trouble on his separation questionnaire. There were no complaints of tinnitus in his records. He reports tinnitus today that is mild, infrequent and of short duration indicating normal occurring tinnitus.” Initially, the Board notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, while the Veteran’s service treatment records are negative for specific complaints of tinnitus, the Veteran is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. He is also competent to comment on the onset and frequency of his tinnitus. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. Here, under Charles the Veteran is competent to identify the medical condition of tinnitus and his lay statements describe tinnitus beginning in service supports the later diagnosis by the October 2014 VA examiner. While the October 2014 VA examiner opined that the Veteran’s tinnitus was not related to his military service as he denied any ear trouble on his separation questionnaire, the Board finds that this is inaccurate. As above, the Veteran’s service treatment records document hearing loss, which, arguably, can be considered ear trouble. As such, the Board finds that the October 2014 opinion is not probative. In this case, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus and service connection for tinnitus is warranted. 38 C.F.R. § 3.303(a). REASONS FOR REMAND An initial disability rating in excess of 10 percent disabling for left shoulder impingement is remanded. With regard to the left shoulder issue, the Veteran was last afforded a VA examination for this disability in July 2013. While the July 2013 VA examination shows range of motion findings for both shoulders, it does not indicate whether the findings were on both active and passive motion and/or in weight-bearing and nonweight-bearing. Since this examination, a new precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Unfortunately, the July 2013 VA examination report does not comply with Correia. Accordingly, the Veteran must be afforded a new VA examination to correct the deficiencies noted above. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo VA examination for evaluation of his left shoulder disability. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joints in question in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 2. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel