Citation Nr: 1817618 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-25 444 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for body cramps. 3. Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure. 4. Entitlement to service connection for residuals of a lung condition, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from October 1963 to August 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2012 and February 2013 decisions of the Portland, Oregon, Regional Office (RO). In July 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. The issues of entitlement to service connection for body cramps, a heart condition, and residuals of a lung condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Tinnitus originated during active service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system including tinnitus is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). In the Veteran's August 1966 examination for service separation the examiner noted "normal" ears but the Veteran checked a box indicating that he had ear, nose, or throat trouble. In a November 2011 lay statement the Veteran indicated that while in-service he stood watch in the engine and boiler rooms of the USS Kitty Hawk for 8 to 16 hour shifts. The Veteran stated that he was exposed to acoustic trauma during that time. In November 2011, the Veteran was afforded a VA examination. The Veteran reported ringing in his ears, however, the examiner did not provide an opinion as to the etiology of the Veteran's tinnitus. In October 2012, the Veteran was afforded a VA examination. The examiner noted no complaints of tinnitus until several years after service separation and opined that the Veteran's tinnitus was not due to in-service acoustic trauma. In a February 2013 VA examination the examiner opined that the Veteran's tinnitus was not related to his service. The examiner provided no reasoning to support his conclusion. In the Veteran's July 2017 hearing testimony he indicated working in the boiler room of the USS Kitty Hawk with exposure to noise from multiple sources with no ear protection. The Veteran also indicated that he began to experience tinnitus immediately after his shifts in the boiler room and that his tinnitus has been ongoing since his service on the USS Kitty Hawk. The Veteran contends that his tinnitus began during active service. The competent evidence as to the etiology of his tinnitus is in conflict. While the VA medical opinions state that the Veteran's tinnitus likely began after service separation, the Veteran has explained that it began during active service. There is no evidence that impeaches the Veteran's credibility before the Board. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus arose during active service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for tinnitus and the claim is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND Remand is necessary to obtain medical records and VA examinations for the Veteran's claimed disabilities. The case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who provided treatment for his body cramps, heart condition, and lung condition. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file or e-folder. A special request should be made to obtain a July 2017 CT scan and any associated records from the Rogue Valley Medical Center. 2. After all available records have been associated with the claims file and/or e-folder, schedule the Veteran for a VA examination to determine WHETHER HE HAS A DIAGNOSIS FOR A DISORDER CAUSING BODY CRAMPING AND PAIN AND IF SO, WHETHER THE DIAGNOSIS WAS LINKED TO MILITARY SERVICE. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran's October 1963 enlistment examination he reported a history of leg cramps. * In the Veteran's August 1966 separation examination, the examiner indicated normal lower extremities and musculoskeletal system and recorded no complaints relevant to body cramps. * In the Veteran's November 2011 lay statement he reported standing watch in boiler rooms for eight hours per day where temperatures would reach as high as 155 degrees. The Veteran reported that drinkable water was not available during these shifts and stated that he began to feel muscle cramps and spasms after working in these conditions for a few weeks. * In March 2012 the Veteran's wife submitted a lay statement noting recurring cramps in her husband's back, legs, and arms. * In January 2015 the VA obtained the deck logs of the USS Kitty Hawk. No evidence of water contamination was found aboard the ship, for the period from February 1964 to July 31, 1964. * In the Veteran's July 2017 hearing testimony he indicated that while on the USS Kitty Hawk he routinely stood watch in the boiler room where temperatures reached 150 degrees. The Veteran testified that during this time he did not have access to drinkable water due to a combination of factors including contamination of the drinking water on the entire ship and the water available near the boiler room being too hot to drink. b. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. c. The examiner must provide an opinion as to whether the Veteran's body cramps began during a period of active service, or existed prior to service and was aggravated by service. d. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide a medical findings or opinion to describe whether lack of hydration or electrolyte imbalance could lead to a permanent condition causing symptoms of body cramps. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. 3. After all available records have been associated with the claims file and/or e-folder, schedule the Veteran for a VA examination to determine WHETHER HE HAS A DIAGNOSIS OF A HEART DISORDER AND IF SO, WHETHER THE DISORDER WAS CAUSED BY MILITARY SERVICE. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran's October 1963 enlistment examination he reported chest pain and indigestion. * In the Veteran's August 1966 separation examination he was noted to have a normal heart with no relevant complaints. * In a May 2011 treatment record the clinician noted a stent placement in September 2001. The clinician also noted a history of hypertension, irregular heartbeat, high cholesterol and hypothyroidism, no history of heart attack or coronary artery disease was noted. * In a treatment record from February 2011 the Veteran indicated a history of sporadic palpitations. The clinician noted chest pain and recorded an impression of coronary artery disease with normal left ventricle function and a normal rest/stress cardiolite exam from January 2011. The clinician noted the benign nature of isolated premature ventricular contractions and recommended no therapy aside from medication. * In a November 2011 lay statement the Veteran indicated that he had three stents implanted in September 2001. The Veteran reported a history of chest pain, lack of energy, and shortness of breath. The Veteran stated that he did not set foot on Vietnam soil but did serve aboard the USS Kitty Hawk, USS Chickasaw, and the USS Klondike. The Veteran reported service along the coastal waters of Vietnam and the use of 55 gallon drums, which formally contained agent orange, for BBQ grills while aboard the USS Klondike. * In the Veteran's July 2017 hearing testimony he indicated that while stationed on the USS Klondike he and other sailors cut empty agent orange barrels from a military base in Subic Bay, Philippines for use as BBQ grills. b. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. c. The examiner must provide an opinion as to whether the Veteran's heart condition began during a period of active service, or existed prior to service and was aggravated by service. d. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. 4. After all available records have been associated with the claims file and/or e-folder, schedule the Veteran for a VA examination to determine WHETHER HE HAS A DIAGNOSED LUNG DISORDER AND WHETHER IT WAS CAUSED BY MILITARY SERVICE. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran's August 1966 separation examination he was noted to have normal lungs and chest with no relevant complaints. * In a November 2011 lay statement the Veteran noted exposure to asbestos while working in the boiler room aboard the USS Kitty Hawk. The Veteran noted that during work on the boiler rooms, asbestos was removed and lined the decks. During these repairs the Veteran reported walking through asbestos for extended periods of time. * In a March 2012 lay statement the Veteran's wife indicated that he had difficulty breathing while living in Southern California due to smog and forced them to relocate. * In the Veteran's July 2017 hearing testimony he noted exposure to asbestos while working as an electrician. The Veteran noted increased sensitivity to pollution and dust as well as multiple instances of bronchitis since service. The Veteran indicated an upcoming CT scan of his lungs in late July 2017 to assist his treating physician in diagnosing the cause of spots on his lungs. b. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. c. The examiner must provide an opinion as to whether the Veteran's lung condition began during a period of active service or as a result of his service. d. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs