Citation Nr: 19191030 Decision Date: 12/05/19 Archive Date: 12/04/19 DOCKET NO. 15-38 416 DATE: December 5, 2019 ORDER Entitlement to service connection for right arm tenosynovitis is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable rating for a right wrist surgical scar, status post tendosynovectomy, is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s right arm tenosynovitis began during service. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus began during service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right arm tenosynovitis have been met. 38 U.S.C. § 1110, 1111, 5107(b); 38 C.F.R. § 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110, 1111, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from September 2003 to September 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on his October 2015 substantive appeal (VA Form 9), but he withdrew his hearing request in May 2019 (see May 2019 statements from the Veteran and his representative). Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded on a veteran’s examination report are to be considered as “noted.” 38 C.F.R. § 3.304(b). When a pre-existing condition is not noted on a veteran’s entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 1. Entitlement to service connection for right arm tenosynovitis. The Veteran asserts that he has current right arm disability that had its onset in service. After reviewing the relevant lay and medical evidence, the Board concludes, for the following reasons, that the Veteran has a current diagnosis of right arm tenosynovitis and that the evidence is at least in equipoise as to whether this disability began during service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA medical records, to include an August 2015 VA orthopedic surgery attending note, show the Veteran has a current diagnosis of right arm tenosynovitis. As such, the first element of service connection is met. The report of the Veteran’s January 2003 entrance examination indicates that there were no right arm abnormalities noted at the time he was examined, accepted, and enrolled for service. As the Veteran’s entrance examination did not reveal evidence of any right arm disability, he is entitled to the presumption of soundness and the Board must consider whether that presumption is rebutted by clear and unmistakable evidence. Private treatment records dated in September 1996 reflect that the Veteran sustained fractures of the shafts of the right radius and ulna when he fell over the handlebars of his bicycle. He reported on a January 2003 report of medical history form completed for purposes of entrance into service that although he broke his arm prior to service, he had not experienced any problems since that time. Moreover, his service treatment records dated from October 2006 to May 2007 indicate that he was treated for right forearm swelling on various occasions and that he underwent a right forearm radical flexor tenosynovectomy in May 2007. Also, his post-service medical records and lay statements indicate that his right arm symptoms have continued in the years since service. The Veteran is competent to report continuous right arm symptoms in the years since service. See Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is nothing to explicitly contradict his reports and they are generally consistent with the evidence of record. Thus, the Board finds that the reports of continuous right arm symptoms in the years since service are credible. In light of the above evidence (including the clinical evidence contained in the Veteran’s service treatment records (which document extensive treatment for right arm problems during service) and the post-service lay and medical evidence of continuous right arm symptoms in the years since service), the Board finds that although there is evidence of a right arm injury prior to service, the evidence is not clear and unmistakable that the Veteran’s current right arm disability both existed prior to service and was not aggravated during service. As such, the presumption of soundness is not rebutted. The examiner who conducted a February 2015 VA examination provided a negative nexus opinion regarding the Veteran’s claimed right arm disability. The examiner stated that the Veteran had a fracture prior to service and that his disability is a commonly known natural progression of the injury that occurred prior to service. The Board finds the February 2015 opinion to have some limited probative weight as it provides an alternative cause of the Veteran’s disability. However, as noted above, the Board has found the Veteran was in sound condition when he entered service. The Veteran has also provided a positive nexus opinion. The physician who conducted the August 2015 VA orthopedic surgery consultation stated that the Veteran’s fracture prior to service was not related to his current tenosynovitis. The physician explained that the Veteran had tenosynovitis in 2007, and that it persists today. The Board finds the August 2015 opinion to have some probative value as well. While the physician did not state that the Veteran’s disability was at least as likely as not related to service, he did rule out the prior fracture as being the cause of the current right arm disability. This opinion was based on the fact that the Veteran had fractured his arm 10 years prior to the onset of his tenosynovitis symptoms. Additionally, he explained that the Veteran experienced tenosynovitis in service, and that it continued after service. In sum, the evidence reflects that the Veteran experienced right arm symptoms and tenosynovitis in service and that there have been continuous right arm symptoms in the years since service. He has also been diagnosed as having current right arm tenosynovitis and there is a medical opinion that his tenosynovitis in service has persisted in the years since service. There is no adequate medical opinion contrary to a conclusion that the current right arm tenosynovitis had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right arm tenosynovitis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus. The Veteran contends he has tinnitus that had its onset in service. The question for the Board is whether the Veteran has tinnitus that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes, for the following reasons, that the Veteran has a diagnosis of tinnitus and that the evidence is at least evenly balanced as to whether this disability began during service. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303. As an initial matter, the Board notes that the report of a February 2015 VA audiological examination indicates that the Veteran reported a history of ear problems (i.e.,ear infections and PE tubes) prior to service as a child. Although the Veteran is certainly competent to report a history of ear problems prior to service, a veteran’s report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing ear disability (including tinnitus) prior to service and the Veteran’s January 2003 entrance examination did not document any ear abnormalities. Therefore, the Board finds that the evidence is not clear and unmistakable that any ear disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. The February 2015 VA audiological examination report shows that the Veteran experiences tinnitus. Moreover, he has presented evidence that his tinnitus began in service. Specifically, he has asserted that the ringing in his ears did not begin until he was exposed to loud noise from military weaponry during live fire training in service when he did not have hearing protection. His DD Form 214 reflects that his military occupational specialty was a rifleman, that he completed rifleman and basic infantryman training, and that he received the Rifle Qualification Badge and Pistol Qualification Badge. The Board finds such exposure to high-levels of noise to be consistent with the circumstances, places, and type of the Veteran’s service and in-service acoustic trauma is conceded. Moreover, his post-service medical records and lay statements indicate that his tinnitus has continued in the years since service. The Veteran is competent to report continuous tinnitus in the years since service. See Jandreau, 492 F.3d 1372, 1377; Buchanan, 451 F.3d at 1337. There is nothing to explicitly contradict his reports and they are generally consistent with the evidence of record. Thus, the Board finds that the reports of continuous tinnitus in the years since service are credible. The examiner who conducted the February 2015 VA audiological examination opined that it was less likely than not that the Veteran’s tinnitus was related to service. In support of this opinion, the examiner explained that the Veteran’s tinnitus was not related to service as he had a history of mild ear infections and PE tubes as a child and that he had scarring. The Board finds this opinion to have some limited probative weight in that the examiner provided alternative causes of the Veteran’s tinnitus. However, the Board notes that it appears that the examiner did not account for the Veteran’s competent and credible lay statements that his tinnitus began in service. Also, as noted above, the Board has found the Veteran was in sound condition when he entered service. In sum, the evidence reflects that the Veteran experienced tinnitus in service and that there has been continuous tinnitus in the years since service. There is no adequate medical opinion contrary to a conclusion that the current tinnitus had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this 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. REASONS FOR REMAND Entitlement to an initial compensable rating for right wrist surgical scar, status post tendosynovectomy, is remanded. The Veteran was most recently afforded a VA scar examination in February 2015. The examination report, however, does not include all necessary information to properly rate the Veteran’s right wrist scarring under the appropriate criteria. For example, only the length of his right wrist scar was provided and no information was given as to whether there was any underlying soft tissue damage. Therefore, a new examination is necessary to ascertain the current severity and manifestations of the Veteran’s service-connected right wrist scar. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Canandaigua, New York/VA outpatient clinic (VAOPC) in Rochester, New York and are dated to August 2017. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, following a February 2016 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file by the agency of original jurisdiction (AOJ) that is relevant to the issue of entitlement to a higher initial rating for the service-connected right wrist scar. This evidence includes VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1304 (c). Hence, the Board is required to remand the right wrist scar issue for issuance of the necessary supplemental statement of the case. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York for the period since August 2017; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist scarring. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically, the examiner should report the nature and severity of any right wrist scarring, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right wrist scarring alone and discuss the effect of the disability on any occupational functioning and activities of daily living. The examiner must provide reasons for any opinion given. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence (including the VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017, and all additional relevant evidence received since the February 2016 supplemental statement of the case) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.