Citation Nr: 1808425 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-49 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to a disability rating in excess of 10 percent for cervical radiculitis of the left upper extremity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to December 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an increased rating for cervical radiculitis of the left upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative evidence of record demonstrates that the Veteran's bilateral tinnitus did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran was provided notice letters pursuant to the Veterans Claims Assistance Act (VCAA) in February 2014. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable. The Veteran has been accorded ample opportunity to present evidence and argument in support of this appeal. See 38 C.F.R. § 3.103 (2017). Analysis Service connection may be granted for 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) (2017). In addition, service connection may be granted for any disease 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). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as tinnitus, 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Recently, the United States Court of Appeals for Veterans Claims held that tinnitus is "chronic disease" under 38 C.F.R. § 3.309 (a) where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as tinnitus is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology 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 or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The probative evidence of record demonstrates a current diagnosis of tinnitus, however, there is no evidence of this specific disability during the Veteran's active service and no evidence indicating this disability is related to the Veteran's active service. STRs do not reflect any complaints, treatment or findings of hearing problems, including tinnitus, a ringing or buzzing in the ears or similar symptom. The separation examination was absent of any findings related to abnormalities of the ears and drums upon clinical evaluation and a whisper voice test demonstrated findings of 15/15 in both ears. The Veteran's DD form 214 reflects his military occupational specialty (MOS) was listed as an ordnanceman, indicating duties related to maintaining weapons/munitions and thereby demonstrating exposure to excessive noise during his active service. See 38 U.S.C. § 1154(a) (2012). The post-service medical evidence, including VA outpatient treatment reports and a May 2014 VA examination, demonstrates that the Veteran was treated for tinnitus as early as June 2007 (per a June 2007 VA outpatient treatment report), at which time he reported tinnitus began five years ago, approximately 40 years after his separation from active service. In the May 2015 VA examination, the Veteran reported that he believed his tinnitus began a few years back. Thus, as to continuity of symptoms since service, the Board notes that the Veteran has stated that his tinnitus had an onset many years after service. Thus, there is no continuity of symptoms beginning from service or for many years thereafter. The Veteran also reported post-service noise exposure from his occupation as a truck driver for 25 years. The examiner found that it was less likely than not that tinnitus was caused by or a result of military noise exposure. She explained that, according to the National Institute on Deafness and other Communication Disorders, doctors and scientists have discovered that people with different kinds of hearing loss also have tinnitus. She also noted there were more than 200 medicines and countless natural foods and elements that could cause tinnitus. The examiner also reported that allergies, tumors, heart problems, blood vessel problems, jaw and dentition problems and neck problems can also cause tinnitus. She also cited to "iom.com" stating that tinnitus may also develop in response to factors other than noise exposure, such as head injury, brain tumors, middle ear diseases, and certain medications, which can occur without hearing loss. As the VA opinion was provided by a medical professional trained in audiological disorders and was supported by rationale that is consistent with the evidence of record, the Board affords it significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, the opinion was made following a review of entire claims file and clearly indicates that the examiner fully considered all potentially relevant medical evidence as well as the Veteran's contentions. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). There is no contrary opinion. Accordingly, there is no evidence of a nexus between the Veteran's noise exposure in service and his current tinnitus. To the extent the Veteran has offered his opinion that his tinnitus is related to service, these statements pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To the extent he is competent to so opine, the specific, reasoned opinion of the VA examiner is of greater probative weight than any such general lay assertion. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the claim for service connection for tinnitus is denied. ORDER Service connection for tinnitus is denied. REMAND Although a VA examination and opinion were provided for the Veteran's cervical radiculitis of the left upper extremity in April 2014, the examination is inadequate, as the VA examiner provided a sensory examination of the wrong cranial nerve that was not involved with the left upper extremity. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this regard, the Board observes the April 2014 VA examination provided a sensory examination of cranial nerve V, involving the upper face and forehead, instead of the cranial nerve XI (eleventh (spinal accessory, external branch) cranial nerve) dependent upon loss of motor function of sternomastoid and trapezius muscles, which is the nerve involved with the Veteran's left upper extremity disability. Subsequent to the last VA examination, the Veteran has indicated this condition has worsened. See September 2014 Notice of Disagreement. Therefore, a new VA examination is necessary to adequately determine the current severity of the Veteran's cervical radiculitis of the left upper extremity and the effects on his employability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, including any outstanding VA medical records. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination to determine the current nature and severity of his cervical radiculitis of the left upper extremity (eleventh (spinal accessory, external branch) cranial nerve). The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of cervical radiculitis of the left upper extremity should consist of all necessary testing, including examination of the appropriate nerve involved: eleventh (spinal accessory, external branch) cranial nerve. The examiner is asked to comment on the degree of severity of the cervical radiculitis of the left upper extremity and the effects of each on his employment and activities of daily living. The examiner must provide a rationale for any opinion expressed. 3. Then, readjudicate the claim. If the issue is denied, issue a supplemental statement of the case. Then, returning the file to the Board for further appellate consideration. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs