Citation Nr: 1808358 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-08 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a low back disability. 8. Entitlement to service connection for a respiratory disability, to include chronic bronchitis and chronic obstructive pulmonary disorder (COPD). 9. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2017, the Veteran testified before the Board. A transcript of that proceeding is of record. The issues of service connection for hepatitis C, low back disability, right shoulder disability, bilateral knee disabilities, a respiratory disability, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's tinnitus had its onset in active service. 2. The evidence is at least evenly balanced as to whether the Veteran's degenerative joint disease (DJD) of the left wrist is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for DJD of the left wrist have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect the issues decided herein, further discussion of the VCAA is not necessary at this time. Merits Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 (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). A. Tinnitus The Veteran has asserted that he experiences tinnitus, or ringing in the ears. The Board notes that tinnitus is capable of lay observation, and the Veteran has offered competent, credible testimony that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the Veteran has met the current disability requirement for tinnitus. Second, regarding an in-service incident, the Veteran reported exposure to rifle shots during basic training. See Board Hearing Transcript (Tr.) at 16. The Board finds this acoustic trauma consistent with the Veteran's service and has no reason to doubt his lay account of his in-service exposure to loud noises. Finally, the Veteran testified that he began experiencing ringing in the ears during service and he has experienced such ever since. See Board Hearing T. at 16. Again, the Board finds no reason to doubt the credibility of the Veteran's statements regarding his tinnitus beginning in service and continuing since then. While there is no nexus opinion of record, tinnitus is among the chronic diseases listed at 38 C.F.R. § 3.309(a) that may be service connected based on continuity of symptomatology, which the Veteran has demonstrated. Additionally, tinnitus is a rare type of disability for which, in the vast majority of cases, service connection may be established when there is credible lay evidence of continuity of symptomatology since service. See Charles, supra. Given the nature of the disability, as explained above, the Board finds that the Veteran's competent and credible assertions of experiencing tinnitus in service, continuing to experience tinnitus after service, and currently experiencing tinnitus, are sufficient to support a finding that that there may exist a nexus between the Veteran's military service and his current tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Again, the Board finds no reason to question the veracity of the Veteran's assertions in this regard. The evidence is at least evenly balanced as to whether the Veteran's tinnitus had its onset in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Left Wrist Disability The Veteran has been diagnosed with left wrist DJD. See July 2010 VA Examination Report. Second, regarding an in-service incident, service treatment records (STRs) confirm that the Veteran complained of left wrist pain following a motorcycle accident in service in September 1976. A fracture of the distal ulna was noted. Finally, regarding nexus, the July 2010 VA examiner opined that he was unable to speculate as to whether the Veteran's DJD of the left wrist is related to service. This is neither evidence for nor against the Veteran's claim as the examiner offered no opinion as to etiology. The Veteran provided an opinion from Dr. K.Y., M.D., dated July 2011. She noted the Veteran's in-service motorcycle accident and the Veteran's reports of chronic left wrist pain following the in-service incident. She also explained that the Veteran experienced left wrist pain because he outstretched his left hand to break his fall, causing trauma to the left wrist. She concluded that it is more likely than not that the Veteran's left wrist DJD is related to the in-service incident. The Board finds Dr. K.Y.'s opinion probative as she offered a clear opinion, which was supported by a cogent rationale. Although the rational is not extensive, Dr. K.Y.'s stated rationale is clear and in accord with the record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the report is at least of some probative value. The evidence is at least evenly balanced as to whether the Veteran's DJD of the left wrist is related to service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DJD of the left wrist is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. Service connection for DJD of the left wrist is granted. REMAND Regarding the claim for service connection for hepatitis C, the Veteran has stated that he was hospitalized for several days after receiving an air gun injection in service. See October 2011 E-mail of Veteran; Board Hearing T. at 23. His STRs are associated with his claims file, and do not include any inpatient treatment records. However, as inpatient treatment records, which are commonly referred to as "clinical records," are stored separately from STRs (see Veterans Benefits Administration Adjudication Procedures Manual, Manual Rewrite (M21-1MR) Part III.iii.2.B.12.d), a separate request for hospital inpatient records is necessary on remand. Furthermore, since inpatient hospital records are stored according to the hospital where care was rendered (see M21-1MR Part III.iii.2.A.2.c), on remand it is necessary to inquire of the Veteran where he received inpatient treatment during service. The Veteran was afforded a VA examination for hepatitis C in September 2010. The examiner opined that it was unlikely that the Veteran's hepatitis C was the result of air gun injections in service. As part of his rationale, the examiner stated that the Veteran had risk factors for the development of hepatitis C prior to service as he had tattoos. However, the entrance examination notes no tattoos prior to service and that the Veteran's skin was normal (to include any tattoos). Because the examiner's opinion was based, in part, on an inaccurate factual premise, it is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Further, the Veteran testified that he receives disability benefits from the Social Security Administration (SSA). See Board Hearing Tr. at 26. No SSA records are associated with the claims file. As such, the matters on appeal must be remanded to obtain outstanding SSA records. 38 U.S.C. § 5103A(c)(3) (2012); 38 C.F.R. § 3.159(c)(2) (2017); see also Golz v. Shinseki, 590 F.3d 1217 (Fed. Cir. 2010). Regarding the Veteran's low back disability, he was diagnosed with lumbar disc disease at the July 2010 VA examination. The examiner opined that the lumbar disc disease was not related to service as the Veteran was not seen for low back problems in service. This is factually incorrect. The September 1976 STR notes back pain following the in-service motorcycle accident. As the July 2010 VA examiner's opinion is based on inaccurate facts, it is inadequate for the purpose of determining service connection. See Reonal, 5 Vet. App. at 460-61. Regarding the right knee and right shoulder disabilities, the July 2010 VA examiner stated that the Veteran's disabilities were not related to service. He noted that the Veteran was seen in service for right knee and right shoulder problems. Further, the examiner stated that the Veteran had multiple joint pains that occurred in 2002, when he was diagnosed with systemic polyarthritis. Initially, the Board notes that the examiner never explains why the disabilities are not related to service. Further, the Veteran has explained that he was first treated for joint pain in 2002, but he has experienced joint problems since service. See Reonal, 5 Vet. App. at 460-61. Regarding the left knee disability, the examiner offered no opinion as to the etiology of such. Regarding the respiratory disability, the July 2010 VA examiner diagnosed chronic bronchitis. He found that the respiratory disability was not related to service. The examiner noted that the Veteran was seen in service three times for a cough lasting one to two days, but there were no post-service records showing chronic bronchitis. Despite this, the Veteran told the examiner that he has experienced a chronic cough for 35 since service. The examiner did not address this statement of chronicity. For the above reasons, the July 2010 VA examination-for bilateral knee, right shoulder, low back and respiratory disabilities- and September 2010 VA examination for hepatitis C are inadequate. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the above, remand is required to ensure that adequate opinions with respect to the above disabilities are provided. Also, with regard to the orthopedic disabilities, the Veteran has claimed that he has generalized arthritis secondary to hepatitis C. As such, those issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Regarding bilateral hearing loss, the Veteran has not been provided a VA examination detailing the nature and etiology of such. The Veteran testified that he experienced loud noise during basic training and that he has experienced trouble hearing since service. See Board Hearing T. at 16. This evidence is sufficient to trigger VA's duty to provide the Veteran an examination detailing the nature and etiology of any hearing loss. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify the hospital where he was treated during service for sickness following his air gun injection. 2. Contact the appropriate repository to search for pertinent inpatient treatment records based on any response to item 1 above, and follow all procedures outlined in 38 C.F.R. § 3.159(c)(2). 3. Contact SSA to request the Veteran's complete Social Security records, including a copy of any decision made regarding the Veteran's application for SSA disability benefits. Follow the procedures set forth in 38 C.F.R. § 3.159(c) and (e) as regards requesting records from federal facilities. All records and/or responses received should be associated with the claims file. 4. Provide the claims file, including a copy of this remand, to a physician for an addendum opinion. If it is determined an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's hepatitis C had its clinical onset during service or is otherwise related to service, to include air gun injections in service? In providing a rationale, the examiner must comment on (1) the Veteran's report of being sick following the air gun injections, (2) that service treatment records do not show that the Veteran had tattoos prior to service, and (3) the July 2011 opinion of Dr. K.Y., M.D. A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 5. Provide the claims file, including a copy of this remand, to a qualified medical professional for an addendum opinion. If it is determined an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: (a) Identify each right shoulder, low back, right knee, left knee, and respiratory disability experienced by the Veteran. (b) For each identified disability, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's disability had its clinical onset during service or is otherwise related to service, to include air gun injections in service? For the right shoulder disability, the examiner must comment on service treatment records showing right shoulder pain and the Veteran's complaints of joint pain since service. For the right and left knee disabilities, the examiner must comment on service treatment records showing bilateral knee pain and the Veteran's complaints of joint pain since service. For the low back disability, the examiner must comment on the service treatment record showing low back pain following the motorcycle accident and the Veteran's complaints of joint pain since service. For the respiratory disability, the examiner must comment on the service treatment records showing complaints of coughing multiple times during service and the Veteran's complaints of a chronic cough since service. A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 6. Schedule the Veteran for a VA examination to determine the etiology of any bilateral hearing loss. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that any bilateral hearing loss had its clinical onset during service or is otherwise related to service, to include exposure to rifles during basic training? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 7. If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 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 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs