Citation Nr: 18151825 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-10 826 DATE: November 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for headaches to include as secondary to a cervical spine disorder is remanded. FINDING OF FACT Tinnitus had onset during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to June 1982. 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including tinnitus (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R.§§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). First, the Veteran has a current diagnosis of tinnitus because he has provided competent lay testimony that he has current ringing in various pitches in his ears. See October 2013 VA examination report; Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is a type of disorder capable of lay observation and description). Second, the Board finds that the evidence of record supports a finding that the Veteran’s tinnitus began during service. The Veteran reported at the October 2013 VA examination that he noticed tinnitus during active service while working on the flight line. The Veteran is competent to report the presence of tinnitus. See Charles, 16 Vet. App. at 374. The Board finds the Veteran credible in this regard based on his consistent description of ringing in his ears. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, or inconsistent statements), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran also reported that he experienced excessive noise in the form of jet engines, equipment, and ground maintenance equipment on a daily basis for the first three years of active as an aircraft maintenance mechanic. He used hearing protection. The Veteran’s testimony is supported by his service records which show that his military occupation specialty was an environmental health specialist and an airlift/bombardment aircraft maintenance specialist. His competent and credible reports of in-service noise exposure are thus consistent with the circumstances of this service. See 38 U.S.C. § 1154. Third, then, the issue for resolution is whether the Veteran’s current tinnitus is related to in-service tinnitus. The Veteran provided competent lay statements at the October 2013 VA examination that he has had tinnitus since service while working on the flight line. See Charles, 16 Vet. App. at 374. The Veteran reported that the ringing in his ears changes in sound and volume at times and described the sound as ringing in various pitches. The Veteran also reported a history of recreational noise exposure while riding motorcycles for about three weeks but he wore hearing protection. The Board finds the Veteran’s lay statements that he has had tinnitus continuously since service to be credible. Accordingly, the evidence of record demonstrates tinnitus that started during service, that continued from that time, and that exists at this time. Service connection is thus warranted. It is noted that an October 2013 VA examination report contained an opinion in which the examiner opined that the tinnitus was less likely as not (50/50 probability) caused by or a result of military noise exposure. The examiner reasoned that the STRs did not contain reports or complaints of tinnitus and although the Veteran was treated for his ears in service for pain, but tinnitus was never mentioned as a symptom. However, the examiner did not not consider the Veteran’s lay statements regarding his duties in service and his exposure to noise and his symptoms during service. Accordingly, this opinion is without probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of an opinion is whether the examiner was informed of the relevant facts). With reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran’s tinnitus had onset during active service. Accordingly, entitlement to service connection for tinnitus is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder The Veteran alleges that his lumbar spine disorder had onset in or is otherwise related to active service. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement and must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). An October 2013 VA examination was conducted. MRI and imaging studies produced diagnoses of minor thoracic spondylosis and thoracolumbar spine arthritis. The examiner opined that the Veteran’s thoracic spondylosis and periodic muscle spasms of the upper back are less likely than not caused by military service, reasoning that with no history of any traumatic damage to vertebrae, it is more likely that the spondylosis is from the aging process and the stresses on the spine over the years with activities of daily living. The examiner noted that muscle spasms come and go. However, the examination report did not consider or address the Veteran’s lay statements regarding his symptoms, nor did it address the Veteran’s STRs from February 1977 which showed that the Veteran was put on a Physical Profile for a calcaneal spine and was precluded from prolonged standing or walking. Thus, a new VA examination is warranted. 2. Entitlement to service connection for a cervical spine disorder The Veteran alleges that his cervical spine disorder had onset in or is otherwise related to active service. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement and must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). An October 2013 VA examination was conducted. The diagnoses were cervical spasm. mild cervical spondylosis, and degenerative joint disease. The examiner opined that the spondylosis and periodic muscle spasms in the neck are less likely than not incurred in or caused by military service. The examiner reasoned that because there was no history of any a traumatic damage to vertebrae, it was more likely that the mild cervical spondylosis is from the aging process and stresses on the spine over the years with activities of daily living. The examiner stated that with regards to muscle spasms, they come and go. However, the examination report did not consider or address the Veteran’s lay statements regarding his symptoms, nor did they address the Veteran’s STRs from between February 1977 to March 1979 which noted numerous diagnoses of cervical spasms, and a February 1979 STR note which indicated that the Veteran had complained of persistent pains at C7 since he fell on New Years’ Day. Thus, a new VA examination is warranted. 3. Entitlement to service connection for a bilateral foot disorder The Veteran alleges that his bilateral foot disorder had onset in or is otherwise related to active service. Remand is also required to obtain a VA examination. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). The Veteran’s STRs between January 1972 to February 1981 revealed numerous complaints of bilateral foot pain, and treatment for a number of diagnoses, including tinea pedis, chronic bilateral podagra, plantar fasciitis, sesamoiditis, and chronic foot strain. An August 2013 letter from private physician indicated that the Veteran is currently diagnosed with capsulitis of the fourth and fifth metatarsal bases. The evidence of record contains competent evidence that the Veteran has a current disability, evidence that the Veteran suffered from events and injuries in-service, and an indication that the claim disability may be associated with the in-service injuries or events through the Veteran’s competent and credible description of his foot pains and symptomatology. Thus, a VA examination is warranted to determine the etiology of any bilateral foot disorder. 4. Entitlement to service connection for bilateral hearing loss The Veteran alleges that his bilateral hearing loss had onset in or is otherwise related to active service. An October 2013 VA examination was conducted. The Veteran reported that he served in the Air Force and worked for three years in aircraft maintenance and the last two years in environmental health. The Veteran reported experiencing excessive noise in the form of jet engines, equipment used to work on aircrafts, and ground maintenance equipment. He also reported using hearing protection. The Veteran’s audiogram results from the October 2013 VA examination showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 20 30 45 55 LEFT 5 10 40 50 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. The examiner opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service, reasoning that the Veteran had high frequency hearing loss in the left ear upon enlistment, and that upon separation, the Veteran still had normal hearing in the right ear and a high frequency hearing loss in the left ear. The examiner noted that there was a 10dB threshold shift in both ears at one frequency, which the examiner believed could be explained by other issues besides noise exposures. The examiner supported this conclusion by explaining noise exposure would likely shift more than one frequency in each ear. Due to variations of patient responses and variations in testing, the examiner believed that minimal pure tone differences when comparing entry and exit hearing tests do not always reflect hearing loss. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examination report does not address all the relevant evidence of record. The examiner did not consider the Veteran’s lay statements regarding his in-service noise exposure, an April 1982 STR which documented complains of decreased hearing in the left ear, with a provisional diagnosis of “probably noise induced SNHL”, or an April 1982 Audiogram wherein the audiologist noted moderate high frequency sensorineural loss in the left ear and normal hearing in the right ear. Thus, a new VA examination is warranted to determine the etiology of the Veteran’s bilateral hearing loss. 5. Entitlement to service connection for headaches to include as secondary to a cervical spine disorder The Veteran alleges that his headaches initially developed during active service, specifically related to his cervical spasms. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement and must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A March 1978 STR note indicated that the Veteran experienced headaches after a fall which resulted in chronic cervical pain. A December 1997 private family practice progress note showed that the Veteran called into the clinic to complain of headaches. An August 2016 VA examination was conducted. The Veteran reported that his headaches occur about twice per week and the headaches usually last between 12-24 hours. The Veteran reported that the headaches vary in intensity, with pain crawling up his neck to posterior head to both sides of the head. The Veteran stated that severe headaches occur once a week and are “overwhelming” band-like constant pressure rated between a nine to 10 out of 10 on a pain rating scale. The examiner opined that the Veteran’s headaches to include secondary to cervical spine condition was less likely than not due to or the result of the Veteran’s service-connected condition. However, the rationale merely repeated the RO’s reasoning for denying service connection for a cervical spine condition, did not address headaches at all, or address whether they are related to active service, to include secondary to a cervical spine disorder. In an October 2016 addendum opinion, the examiner clarified and stated that there were no objective findings to support a diagnosis of the claimed condition since the Veteran did not have a diagnosis of headaches and has not complained of headaches to any medical provider. The addendum opinion did not address the March 1978 notation that the Veteran complained of headaches in-service and a December 1997 family practice progress note documenting complaints of headaches, nor did the opinion address either direct or secondary theories of entitlement. For all the foregoing reasons, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. 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. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any lumbar spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description his service. (a.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder had onset in, or is otherwise related to active service. The examiner must address: 1) STRs, including the February 1977 Physical Profile for a calcaneal spine; and 2) the Veteran’s lay statements regarding his symptoms. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any cervical spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description his service. (a.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a cervical spine disorder had onset in, or is otherwise related to active service. The examiner must address: 1) STRs, including a February 1979 treatment note indicating the Veteran had complained of persistent pain at C7 since a fall on New Years’ Day and numerous diagnoses of cervical spasms; and 2) the Veteran’s lay statements regarding his symptoms. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of bilateral foot disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description his service. (a.) Identify all diagnosed bilateral foot disorders. If no current bilateral foot disorder is diagnosed, please address all prior diagnoses of record, including: 1) tinea pedis; 2) chronic bilateral podagra; 3) plantar fasciitis; 4) sesamoiditis; 5) chronic foot strain; and capsulitis of the fourth and fifth metatarsal bases. See STRs and the August 2013 private physician letter. (b.) For each diagnosed bilateral foot disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to active service. The examiner must address the Veteran’s lay statements regarding his symptoms. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description his service. (a.) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had onset in, or is otherwise related to, active service. The examiner must address: 1) an April 1982 STR note which documented complaints of decreased hearing in the left ear, with a provisional diagnosis of “probably noise induced SNHL”; 2) an April 1982 audiogram noting moderate high frequency sensorineural hearing loss in the left ear; and 3) the Veteran’s lay statements regarding his in-service duties and noise exposure. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any headache disorder, to include as secondary to a cervical spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description his service. (a.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that headaches had onset in, or is otherwise related to, active service. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that headaches was caused by a cervical spine disorder. (c.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that headaches was aggravated by a cervical spine disorder. The examiner must address: 1) a March 1978 STR note indicating the Veteran experienced headaches after a fall which resulted in chronic cervical pain; 2) a December 1997 private practice progress note showing the Veteran called to complain of headaches; and 3) the Veteran’s lay statements regarding his symptoms. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel