Citation Nr: 1807391 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-01 264 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the feet. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a variously diagnosed psychiatric disability, to include depressive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1987 to May 1990. These matters are before the Board of Veterans'Appeals (Board) on appeal from an April 2010 rating decision by the St. Petersburg, Florida VARO. In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. Although the claim of service connection for a psychiatric disability was developed and adjudicated limited to the diagnosis of depressive disorder, as the record shows diagnoses of other psychiatric disorders, under Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the issue is expanded to encompass any psychiatric disability shown, however diagnosed. The issues of service connection for bilateral hearing loss, a low back disability, and a variously diagnosed psychiatric disability are being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran is not shown to have any disability that is a residual of frostbite of the feet. 2. The Veteran's tinnitus is reasonably shown to have had onset in service, and to have persisted since. CONCLUSIONS OF LAW 1. Service connection for residuals of frostbite of the feet is not warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in September 2009. See 38 U.S.C. §§ 5102, 5103, 5103A ; 38 C.F.R. § 3.159. At the November 2016 videoconference hearing, the undersigned identified the issues on appeal, explained the evidence needed to establish service connection for residuals of frostbite of the feet and tinnitus, and identified further evidence that could help substantiate the claims. His testimony reflects that he is aware of what is needed to substantiate the claims. At the Veteran's request the case was held in abeyance 60 days for submission of additional evidence. In January 2017 the Veteran's representative requested an extension of time for submission of additional evidence. Additional evidence was received. The Veteran's service treatment records (STRs) and pertinent postservice treatment records are associated with the record. He was afforded examinations in connection with these claims in January 2010 and February 2010. He has not identified any pertinent evidence that is outstanding. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a current disability (for which service connection is sought); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current claimed disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include tinnitus as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a year following the date of separation from service. 38 U.S.C.§§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For then chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (i) a layperson is competent to identify the medical condition, (e.g., a broken leg, tinnitus), (ii) the layperson is reporting a contemporaneous medical diagnosis, or (iii) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's military occupational specialty (MOS) was aviation machinist's mate, and he was temporarily assigned as a landing signalman. The Veteran's service entrance examination notes mild bilateral pes planus. April 1987 and July 1988 STRs note that he was seen for complaints of foot pain. His STRs contain no mention of complaints, diagnosis or treatment pertaining to tinnitus or frostbite. On May 1990 service separation examination, his lower extremities, feet, and ears were normal. In the Veteran's claim seeking service connection for frostbite of the feet filed in September 2009, he stated that he participated in the Team Spirit games in Korea, worked on the flight deck for up to 20 hours at a time, and was treated for frostbite. On January 2010 VA foot examination, the Veteran reported that he was a flight deck captain, and during training in Korea, was exposed to cold temperatures on the flight deck that resulted in "frozen" and extremely cold feet. The examiner noted that no foot pathology had been diagnosed, and the Veteran had not reported any foot problems since establishing VA treatment in 2003. On examination, the examiner noted pain, swelling, redness, stiffness, and lack of endurance in both feet on standing and walking. No heat, fatigability, or weakness was noted in either foot. No skin or vascular foot abnormality was noted in either foot. X-rays showed no focal soft tissue abnormality in either foot. The diagnosis was bilateral pes planus. The examiner opined that it was less likely as not that the foot pain was incurred in or caused by or a result of cold injury during the Veteran's service. He explained that he could not find chronic sequela or residuals of a cold injury to the tissue of either foot. He further explained that the symptoms shown on X-ray were suggestive of a mechanical ankle problem. On February 2010 VA audiological evaluation, the Veteran reported that he served as a jet mechanic on the flight deck of a carrier in service. He reported exposure to jet engine noise. He reported that his tinnitus began in service and that it hast since occurred intermittently, lasting for a few seconds. During the November 2016 videoconference hearing, the Veteran testified that he did not seek treatment for frostbite in service. He reported that he worked on the flight deck while stationed in Korea and was constantly exposed to wet weather conditions and jet engine noise. He reported that after service he was diagnosed with foot problems and sought treatment from a podiatrist, and that he could provide a nexus statement relating his cold injury to service. [The Board notes such opinion was not provided]. He also reported that he has had "ringing in his ears" since service. Frostbite residuals May 2015 X-rays showed moderate degenerative arthrosis of the first metatarsophalangeal joints of both feet. An August 2016 VA treatment record notes there was no peripheral edema, and that pulses were palpable and equal bilaterally. The Veteran reported tingling toes and calluses. On examination, multiple tender calluses and dystrophic toenails were noted on the left foot. X-rays showed moderate degenerative changes in each foot. During the November 2016 hearing before the undersigned, the Veteran testified he was exposed to cold temperatures in Korea. It is not in dispute that he was exposed to cold in service. However, while STRs confirm he received treatment for foot pain, his service separation examination found normal lower extremities and feet. The first report by the Veteran of record expressing that any foot problems he has may be due to frostbite was on January 2010 VA examination. Thus the record suggests that any cold injury to the feet in service was acute, without lasting effects. As is noted above, on January 2010 VA examination, the examiner could not find chronic sequela or residuals of a cold injury to the tissue of either foot. Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, there is no proof that the Veteran has any disability that is a residual of frostbite of the feet. Accordingly, he has not met the threshold requirement for substantiating a claim of service connection for such disability, and his appeal in the matter must be denied. Tinnitus The Veteran claims that he is entitled to service connection for tinnitus because it began in service and is related to his exposure to noise therein. Based on his service records and his accounts of duties in service, it may reasonably be conceded that he was exposed to hazardous levels of noise in service. In essence, tinnitus is a disability that is diagnosed based on self-report (lay observation by the person with such disability); hence, the Veteran is competent and eminently qualified to establish by his own accounts that he has tinnitus, and that he has had it continuously since service (which is one way of substantiating a service connection claim; see 38 C.F.R. § 3.303(b)). Consequently, what is presented to the Board is the question of the Veteran's credibility (i.e., in his accounts that his tinnitus began during service, and has persisted since). The evidence against the Veteran's claim is in the report of a February 2010 VA examination, when the Veteran reported bilateral tinnitus with onset in service and occurred bilaterally and intermittingly for a few seconds. The examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that his tinnitus was intermittent and only lasted a few seconds. The Board finds the reasoning by the February 2010 VA examiner to be less than persuasive. That tinnitus is intermittent does not establish that it is non-chronic or non-persistent; and that it may last only seconds does not establish that it is non-disabling. The Veteran is competent to report experiencing a persistent tinnitus since his service, as he reported in on VA examination, and at the November 2016 Board hearing. It is not in dispute that the Veteran has tinnitus; the Board finds no reason to question the Veteran's reports that he ringing in his ears (and his reports have not been placed in question by medical providers). One way of establishing a nexus between a current chronic disability and service is by showing that such disability became manifest in service, and has persisted since. The Veteran has indicated that is the situation in the instant case, and the Board finds no reason to question the credibility of his accounts. They are reasonably consistent with the circumstances of his service, and are not directly contradicted by recorded clinical data. The February 2010 VA examiner did not address the Veteran's lay accounts of onset of tinnitus in service (not reject them as not credible). As noted above, the examiner's rationale is not persuasive. Resolving reasonable doubt in the Veteran's favor (as required, see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus began in service and has persisted since. The requirements for establishing service connection are met (see 38 C.F.R. § 3.303(b)); service connection for tinnitus is warranted. ORDER Service connection for residuals of frostbite of the feet is denied. Service connection for tinnitus is warranted. REMAND On February 2010 VA audiological evaluation, audiometry did not show a hearing loss disability (as defined in 38 C.F.R. § 3.385). At the November 2016 videoconference hearing, the Veteran testified that his hearing has worsened since the February 2010 evaluation. Due to the allegation of worsening, and the length of time since the last evaluation, another audiological evaluation is necessary. The Veteran asserts that he injured his back in service loading aircraft. In a May 1990 report of medical history, he reported recurrent back pain. In his September 2010 notice of disagreement (NOD), he notes back treatment at Naval Air Station North Island San Diego Hospital from October to December 1987. The records do not appear to be in the file. At the November 2016 videoconference hearing, the Veteran reported that he went to VA and private chiropractors after service and was informed that he had sciatic problems due to a compressed L4 or L5 disc. He related that a private chiropractor provided an opinion that his back disorder was due to military service. Given evidence of possible chronicity of low back pain since service, a possible positive nexus opinion, and a current disability, the Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met; development for such an examination is necessary. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). At the November 2016 videoconference hearing, the Veteran testified that he had a clinical diagnosis of, and was being treated for, depression. He claimed that his current psychiatric disability was related to being abused during service. He has not been afforded an examination in conjunction with his claim of service connection for a psychiatric disability. VA treatment records note several psychiatric diagnoses (major depressive disorder, anxiety NOS, and adjustment disorder). Under such circumstances, the low threshold standard for determining when VA must provide an examination to assess the nature and likely etiology of the claimed disability is met. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, as the Veteran appears to be receiving ongoing treatment for low back and psychiatric disabilities, and records of such treatment are pertinent evidence, (and VA records are constructively of record), updated treatment records must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) evaluations or treatment he has received for the low back and psychiatric disabilities, and to provide all releases necessary for VA to secure any private records of such evaluations or treatment. The AOJ should secure for the record complete records of all such evaluations and treatment from all providers identified. If any requested records are unavailable, the reason must be explained for the record, and the Veteran must be so notified. The AOJ should also secure for the record complete clinical records of all updated (to the present) VA evaluations and treatment the Veteran has received for such disabilities since April 2017. 2. The AOJ should arrange for an audiological examination of the Veteran to ascertain whether or not he has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so the likely etiology of the hearing loss. The entire record must be reviewed by the examiner in conjunction with the examination. Based on a review of the record, and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Does the Veteran have a nearing loss disability (as defined in 38 C.F.R. § 3.385) in either or both ears? (b) If a hearing loss disability is found, please identify the likely etiology of such disability. Specifically, is the Veteran's hearing loss at least as likely as not (i.e., a 50% or better probability) related to his service (to include as due to exposure to noise therein)? If the hearing loss is determined to be unrelated to service, the provider should identify the etiology for the hearing loss considered more likely (and explain why that is so). The examiner must include rationale with all opinions (and should acknowledge that by virtue of his duties in service the Veteran was likely exposed to loud noise in service). 3. The AOJ should also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his low back disability. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each low back disability entity found/or shown by the record during the pendency of the instant claim. (b) Please identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that such disability began in (or is otherwise related to) the Veteran's military service/alleged injury therein? (c) If a diagnosed low back disability is found to be unrelated to service, the examiner must note the etiology considered more likely and explain why that is so. The examiner must include rationale with all opinions. 4. The AOJ should also arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of his psychiatric disability. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary must be ordered. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify, by diagnosis, each psychiatric disability entity found. The examiner should specifically discuss the diagnoses of adjustment disorder, depression, and anxiety noted in VA treatment records. (b) Please identify the likely etiology of each psychiatric disability entity diagnosed. Is at least as likely as not (a 50 % or better probability) that the entity diagnosed is related directly to the Veteran's military service (was incurred therein), or was either caused or aggravated by a service-connected disability? The examiner must include rationale with all opinions. 5. The AOJ should then review the record, arrange for any further development indicated, and readjudicate the remaining claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs