Citation Nr: 1806404 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-23 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for right ear tinnitus. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Alexandra M. Jackson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran had active duty training from February 1979 to September 1979 and active duty service from November 1979 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and the VA Atlanta RO in Decatur, Georgia, respectively. Jurisdiction over the matter currently resides with the Atlanta RO. In August 2016, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, further development is necessary prior to adjudication of the Veteran's claims. I. VA Examinations VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As will be explained below, the Board finds that the Veteran must be afforded initial VA examinations prior to adjudication of both her neck and right ear tinnitus claims. Turning first to the neck claim, the record reflects that the Veteran has been diagnosed with multilevel spondylosis and degenerative disc disease of the cervical spine. She has asserted that her current neck disability began following documented in-service falls she sustained in September 1980, and, in October 2016, she submitted an opinion from a private provider who stated that it was at least as likely as not that her cervical spine condition was a result of her military service. Unfortunately, as the provider did not explain the reasons for his conclusion and it is unclear what evidence he reviewed prior to issuing it, that opinion does not form a sufficient basis on which to grant service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). However, in light of the low threshold of the McLendon standard and the foregoing evidence, the Board finds that the Veteran must be afforded an initial VA examination prior to adjudication of her claim. Regarding the tinnitus claim, the Board acknowledges that the Veteran has reported right ear tinnitus following in-service noise exposure and that she is competent to identify tinnitus and its onset. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). It further acknowledges that the same private provider who issued an opinion regarding the Veteran's neck disability also opined that her tinnitus was at least as likely as not related to service. However, the Veteran's reports, during medical treatment, regarding when her right ear tinnitus began have been inconsistent, and the private clinician's opinion was again conclusory. Moreover, several VA clinicians have attributed the Veteran's right ear tinnitus to an aberrant course of her right internal carotid artery. Although one clinician indicated that an in-service fall was notable in the context of that finding, an opinion regarding the underlying cause of the aberrant course of the artery is not of record. In view of the foregoing, the Board finds that the medical evidence addressing the etiology of the Veteran's current right ear tinnitus is also insufficient to make a decision at this time. As a result, that claim must also be remanded for an initial VA examination. II. Records The Veteran's VA treatment records suggest that she is receiving Social Security Administration (SSA) disability benefits. They also suggest that the SSA's determinations in that regard may include additional medical information or statements that are relevant to her neck claim. As those records are not associated with the claims file, they must be sought on remand. Additionally, it appears that STRs from the Veteran's period of active duty training-from February 1979 to September 1979-have not yet been sought, and those records may be relevant to her tinnitus claim. Thus, on remand, the AOJ should ensure that all available STRs have been associated with the claims file. III. Issuance of a Statement of the Case Finally, the Board has also taken jurisdiction over the issue of entitlement to service connection for a low back disability for the limited purpose of ordering corrective action pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon v. West, 12 Vet. App. 238 (1999)). In that regard, in December 2010, the Veteran filed a notice of disagreement (NOD) with the RO's November 2010 denial of service connection for that disability. Although the RO acknowledged the NOD in a March 2011 letter, it has not, to date, issued a Statement of the Case (SOC), nor is there any indication that it is actively processing that appeal. As a result, remand is required so that an SOC addressing entitlement to service connection for a low back disability may be issued. See Manlincon, 12 Vet. App. at 239-41. The Veteran will then have the opportunity to perfect an appeal as to that issue if she so chooses. Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issue of entitlement to service connection for a low back disability. The Veteran is hereby notified that, following the receipt of the SOC concerning that issue, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, that issue should be returned to the Board for appellate review. 2. Ensure that all available STRs from both of the Veteran's periods of service (February 1979 to September 1979, and November 1979 to December 1980) are associated with the claims file. 3. Contact the SSA and obtain the records associated with all Social Security disability benefits claims the Veteran has filed, including copies of the decisions and copies of the medical records relied upon to make those decisions. 4. After the development requested in items 2 and 3 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the etiology of her neck disability. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should ensure that both the Veteran's original STRs and the excerpts she submitted that include what are presumably her notes regarding when she experienced neck pain are reviewed. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: For each neck condition you identify, including but not limited to multilevel spondylosis and degenerative disc disease, is it at least as likely as not (50 percent probability or more) that the disability arose during service or, with respect to arthritis, within a year of her discharge in December 1980; or, if not, that it is otherwise the result of the falls she sustained in service? Please explain why or why not, specifically considering and discussing (1) the in-service falls the Veteran has described, including those documented on September 16, 1980, and September 30, 1980, and an additional September 1980 fall in the latrine; and (2) any post-service falls or injuries she sustained (see, for example, October 20, 2004, and March 13, 2006, VA treatment notes referencing a car or bus accident in 1994; and February 6, 2006, and February 10, 2006, VA treatment notes referencing an apparently more recent fall from the seat of a bus). Please note that the Veteran is competent to report symptoms, treatment, and injuries and that her reports must be taken into account in formulating the requested opinion. A discussion of the facts and medical principles involved will be of considerable assistance to the Board, and the underlying reasons for your opinion must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. Schedule the Veteran for a VA examination, with an otolaryngologist, if possible, to determine the nature and etiology of her right ear tinnitus. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please ask the Veteran to describe the onset and progression of all symptoms she is characterizing as tinnitus (including but not limited to symptoms of ringing, humming, or "swooshing"), and include her descriptions in the examination report. (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's right ear tinnitus is related to service or manifested during, or within a year of her December 1980 separation from, service? Please explain why or why not, specifically considering and discussing (1) the Veteran's credible reports of in-service exposure to the noise of weapons fire, with rare use of hearing protection; (2) her report of post-service occupational noise exposure, including while working in a manufacturing plant; (3) the February 8, 2013, findings of a VA otolaryngologist, who suggested that the aberrant course of the Veteran's right internal carotid artery was likely responsible for her right-sided pulsatile tinnitus; and (4) the October 1, 2014, findings of another VA otolaryngologist, who stated, in the context of discussing the Veteran's right ear tinnitus, that her in-service fall was of note. Please note that the Veteran is competent to report symptoms, treatment, and injuries and that her reports must be taken into account in formulating the requested opinion. A discussion of the facts and medical principles involved will be of considerable assistance to the Board, and the underlying reasons for your opinion must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims of entitlement to service connection for a neck disability and right ear tinnitus. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and her attorney and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).