Citation Nr: 1807985	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-17 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for pseudofolliculitis barbae (PFB).

4.  Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD).

5.  Entitlement to an initial rating in excess of 10 percent for left patellar tendon tendinosis.

6.  Entitlement to an initial rating in excess of 10 percent for lumbar strain with mild degenerative joint disease.

7.  Entitlement to an initial compensable rating for left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1997 to January 2008.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to service connection for bilateral hearing loss and for PFB, as well as the issues of higher initial ratings for PTSD, for left patellar tendon tendinosis, for lumbar strain with mild degenerative joint disease, and for left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism, are being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if action on his part is required.


FINDING OF FACT

The Veteran currently has a chronic tinnitus disability, and he has experienced continuity of tinnitus symptomatology ever since being exposed to noise during his service as a Ground Radio Communications Craftsman.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for the sole claim being decided on appeal at this time.

Legal Criteria and Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as an organic disease of the nervous system, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected.  Entitlement to service connection based on chronicity of symptoms pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).

In the present case, the Board finds that the Veteran has been diagnosed with tinnitus during the period of claim, specifically at a July 2009 VA psychiatric examination (which noted an Axis III diagnosis of tinnitus).  Tinnitus, as a type of organic disease of the nervous system, is expressly recognized as a chronic disease under 38 C.F.R. § 3.309(a).  See Fountain v. McDonald, 27 Vet. App. 258, 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).

The Board also finds that the Veteran was exposed to noise during his military service.  His DD Form 214 confirms that his Military Occupational Specialty (MOS) in the Air Force was Ground Radio Communications Craftsman.  The Department of Defense's Duty MOS Noise Exposure Listing indicates that this MOS involves a "moderate" probability of noise exposure during service.  See VA Adjudication Manual (M21), III.iv.4.B.4.e.

Although tinnitus was not explicitly diagnosed during his active service, or within the applicable presumptive period, the Board finds that the record contains credible evidence of continuity of symptomatology related to the Veteran's current tinnitus since his noise exposure during active service.  Specifically, during the course of the appeal, including in a September 2008 VA Form 21-4138, Statement in Support of Claim, and as documented in a July 2017 brief from the Veteran's representative, the Veteran has asserted that his tinnitus began during his active service and that his tinnitus symptoms have continued to the present time.

In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for tinnitus, pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

ORDER

Service connection for tinnitus is granted.


REMAND

On review of the record, the Board has found that additional development is necessary for the claims on appeal seeking entitlement to service connection for bilateral hearing loss and for PFB, as well as the claims on appeal seeking higher initial ratings for PTSD, for left patellar tendon tendinosis, for lumbar strain with mild degenerative joint disease, and for left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism.

Regarding the claim of service connection for bilateral hearing loss, the Veteran contends that he currently has bilateral hearing loss due to his in-service noise exposure and that his symptoms have continued from the time of his service to the present.  As noted above, the Board has found that the Veteran was exposed to noise during his military service, in light of his MOS as a Ground Radio Communications Craftsman.  Post-service, there is no evidence of record to indicate that he has ever been afforded any audiometric testing to determine whether he has a hearing loss disability for VA disability purposes (pursuant to 38 C.F.R. § 3.385).  On remand, an audiology examination with medical opinion must be conducted in order to determine the nature and etiology of any current hearing loss disability.

Regarding the claim of service connection for PFB, the Veteran contends that he currently has PFB related to his in-service diagnosis of PFB and that his symptoms have continued from the time of his service to the present.  His service treatment records document multiple instances (dating from August 1997 to October 2001) when he was diagnosed in service with PFB.  Post-service, at a June 2009 VA general medical examination, the examiner noted that the Veteran had a beard and therefore there was no evidence of current PFB seen in the visible areas.  However, in his August 2010 notice of disagreement, the Veteran stated that he had to shave to keep a professional look and that it was "hard to look professional when you have red marks and pus[] from ingrown hairs on your neck and face."  On remand, a skin examination with medical opinion must be conducted in order to determine the nature and etiology of any current skin disability.

Regarding the claims for higher initial ratings for PTSD, for left patellar tendon tendinosis, for lumbar strain with mild degenerative joint disease, and for left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism, the Veteran was last afforded VA examinations for these disabilities in July 2009, approximately eight and a half years ago.  In addition, in his August 2010 notice of disagreement, the Veteran stated that he was currently seeing a mental health professional who had prescribed him medications for his PTSD symptoms, and that he had seen four other mental health professionals prior to his current one.  Furthermore, in a July 2017 brief, the Veteran's representative argued that the 2009 VA examinations "are too old to adequately evaluate the disabilities."  On remand, after all outstanding treatment records have been obtained, new VA psychiatric and orthopedic examinations must be scheduled in order to ascertain the current level of severity of the Veteran's PTSD, left patellar tendon tendinosis, lumbar strain with mild degenerative joint disease, and left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism, as there is an indication the current record does not adequately reflect the severity of his conditions.

Accordingly, the case is REMANDED for the following actions:

1.  With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, obtain all records of the Veteran's treatment for his claimed disabilities, to specifically include all records from the mental health professionals who were mentioned in his August 2010 notice of disagreement.

If any identified records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

2.  Obtain all updated VA treatment records from July 2009 to the present.

3.  After completing the development requested in items 1 and 2, schedule the Veteran for a VA audiology examination with a clinician with appropriate expertise in order to ascertain the nature and etiology of any current hearing loss disability.  The claims file should be made available to the examiner for review.  Any indicated tests should be accomplished (to specifically include audiometric testing, as well as speech discrimination testing using the Maryland CNC word list, in accordance with 38 C.F.R. § 3.385), and all pertinent symptomatology and findings must be reported in detail.

After reviewing the claims file, the examiner should provide an opinion on the following question: Is it at least as likely as not (50 percent probability or greater) that any hearing loss disability (in either ear) was incurred in, related to, or caused by any incident of the Veteran's military service (to include his noise exposure in service as a Ground Radio Communications Craftsman)?

The examiner should provide a complete rationale for any opinion provided, with specific consideration given to the Veteran's reports of continuity of symptomatology since his service.  If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

4.  After completing the development requested in items 1 and 2, schedule the Veteran for a VA skin examination with a clinician with appropriate expertise in order to ascertain the nature and etiology of any current skin disability (including PFB).  The claims file should be made available to the examiner for review.  Any indicated tests should be accomplished and all pertinent symptomatology and findings must be reported in detail.

After reviewing the claims file, the examiner should provide an opinion on the following questions:

(a)  Identify all valid diagnoses of skin disabilities present at any time since the pendency of the claim, to specifically include PFB.

(b)  For each skin disability that is diagnosed: Is it at least as likely as not (50 percent probability or greater) that such disability was incurred in, related to, or caused by any incident of the Veteran's military service (to include his documented diagnoses of PFB during his service)?

The examiner should provide a complete rationale for any opinion provided, with specific consideration given to the Veteran's reports of continuity of symptomatology since his service.  If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

5.  After completing the development requested in items 1 and 2, schedule the Veteran for a VA psychiatric examination with a clinician with appropriate expertise in order to ascertain the severity of his PTSD.  The claims file should be made available to the examiner for review.  Any indicated tests should be accomplished and all pertinent symptomatology and findings must be reported in detail.

6.  After completing the development requested in items 1 and 2, schedule the Veteran for a VA orthopedic (knee, spine, and hand/fingers) examination(s) with a clinician(s) with appropriate expertise in order to ascertain the severity of his left patellar tendon tendinosis, lumbar strain with mild degenerative joint disease, and left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism.  The claims file should be made available to the examiner(s) for review.  Any indicated tests should be accomplished and all pertinent symptomatology and findings must be reported in detail.

7.  Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for bilateral hearing loss, entitlement to service connection for PFB, entitlement to a higher initial rating for PTSD, entitlement to a higher initial rating for left patellar tendon tendinosis, entitlement to a higher initial rating for lumbar strain with mild degenerative joint disease, and entitlement to a higher initial rating for left little finger boutonniere deformity and left index finger central slip injury to extensor mechanism.  If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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 (2012).




______________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs