Citation Nr: 20004161 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-19 669 DATE: January 16, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. FINDING OF FACT The Veteran’s current tinnitus had onset during his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection will also be presumed for certain chronic diseases, including tinnitus (as an organic disease of the nervous system), if manifest to a compensable degree within one year after discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2018). 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus had its onset in service. He claims that his tinnitus is related to exposure to hazardous noise while serving on the flight deck of the aircraft carrier, USS Independence. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus. As noted above, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Tinnitus is, by definition, “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is “subjective,” as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran’s statement into question for the audiologist. Accordingly, lay testimony is competent to establish the presence of tinnitus and, if the lay testimony is also credible, service connection for tinnitus may be granted. Charles, 16 Vet. App. at 374 (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In this case, the competent evidence of record shows current complaints of tinnitus. Additionally, the Veteran avers that his tinnitus started in service. An April 2014 VA examiner provided an opinion that the Veteran’s tinnitus is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that there was no hearing loss, or evidence of noise injury in service, therefore, the perceived tinnitus was not due to noise exposure during military service. However, this opinion is rather conclusory and does not address the Veteran’s reported history of symptoms beginning while in service. In light of the Veteran’s lay testimony, the Board could remand for another opinion. However, because the Veteran’s own lay testimony that he has experienced tinnitus since service is found credible, the Board concludes that a remand is not necessary here. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, the Veteran’s lay testimony provides an adequate basis on which to grant service connection for tinnitus. In this regard, the Veteran has reported the onset of his tinnitus in service and also contends that it is a result of military acoustic trauma. See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a 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). Specifically, during his August 2019 Board hearing, the Veteran testified that he first noticed ringing in his ears when he was working on the flight deck aboard the USS Independence. He stated that his duties involved refueling and serving planes, such as fixed-wing jets and helicopters, while the engines were still running. Service personnel records show that he served as an Aviation Field Technician and was assigned to the USS Independence for most of his tour of duty. His testimony is consistent with evidence showing extensive noise exposure in service. In this regard, the Board finds that the Veteran was exposed to acoustic trauma in service, as such is consistent with the circumstances of his military service as an Aviation Field Technician in the Navy. 38 U.S.C. § 1154(a). The Board further found the Veteran’s testimony that he started to have ringing in his ears while she was still in service to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing). Accordingly, based on the evidence of record, the Board finds the Veteran’s lay statements are credible as to when his tinnitus began. While there is no medical evidence of record linking the Veteran’s tinnitus to military service, his statements alone may be considered competent and credible evidence to make such a determination. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. During the Board hearing, the Veteran stated that he has been seen at a VA clinic in Orlando, Florida, since he moved to Florida. He also stated that he was waiting for an upcoming hearing test with the clinic. However, these records, as well as other private treatment records, are not contained in the Veteran’s electronic claims file, and thus they are not currently available for the Board’s review. Concerning this, the Veteran indicated that he has been receiving orthopedic treatment from a private physician, a Dr. Fuscell in Orlando. The Board cannot adjudicate the claims based on an incomplete record. See Culver v. Derwinski, 3 Vet. App. 292(1992) (noting that VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.). Thus, a remand is necessary to ensure that the complete record is made available to the Board prior to adjudication of the claims on appeal. Jolley v. Derwinski, 1 Vet. App. 37, 40(1990); Dunn v. West, 11 Vet. App. 462, 466-67(1998); Bell v. Derwinski, 2 Vet. App. 611, 613(1992) (indicating, at bare minimum, VA has constructive, if not actual, notice and possession of these additional records since they are VA generated and maintained, even if not physically in the file). 3. Entitlement to service connection for a back disability is remanded. The Veteran contends that he injured his back in service while performing repetitive motion of handling fueling hoses, dragging them several hundred feet. The medical evidence of record shows a current diagnosis of lumbar spondylosis. Furthermore, service treatment records show treatment for mechanical back strain in November 1985. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicates” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given the lay contention, the Board finds that the foregoing satisfied the third McLendon element that there be an “indication” that the Veteran’s current back disorder may be associated with back strain during service so as to require a VA medical opinion. See McLendon, 20 Vet. App. at 83; see also 38 C.F.R. § 3.159(a)(1). Accordingly, the claim is remanded to provide the Veteran with a medical examination to address that theory of causation. 4. Entitlement to service connection for a respiratory disability is remanded. The Veteran contends that he was exposed to asbestos while assigned to USS Independence. He testified during the Board hearing that he worked in the dry dock and his duties included servicing the ship which involved repairing components that contained asbestos. He stated that he started experiencing symptoms of chronic cough and using inhalers since service. Although the medical evidence of record is not clear as to whether the Veteran currently has a chronic respiratory disorder, he submitted numerous treatment records showing episodes of cough, shortness of breath, bronchitis over the years. The Veteran was never provided a VA examination to determine the current nature and etiology of any respiratory disability. Based on the Veteran’s lay contention, the Board finds that the low threshold under McLendon is met in this case and a VA examination should be obtained to adequately decide the merits of the claim. McLendon, 20 Vet. App. at 83. 5. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is remanded. 6. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. During the August 2019 Board hearing, the Veteran testified that the symptoms of his bilateral knee disabilities have worsened since his last VA examination in March 2014. He also submitted recent private treatment records showing that he may have knee instability now. VA’s duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran’s service-connected knee disabilities at issue on appeal. 38 C.F.R. §§ 3.326, 3.327. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records from the (VAMC) in Orlando, Florida, dated from December 2010 to the present. All efforts to obtain additional evidence must be documented in the claims file. 2. Request that the Veteran identify all non-VA medical providers who have treated him for his claimed conditions. Then obtain copies of the identified medical records that are not already in the claims folder. In particular, the Board is interested in obtaining all private treatment records relating to the Veteran’s bilateral knee osteoarthritis with Dr. Fuscell. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim, and (d) that he is ultimately responsible for providing the evidence . The Veteran must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine any relationship between his currently diagnosed back disability and service. The claims file should be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner is requested to consider the reported history of the Veteran’s symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his back disability is etiologically related to his period of active military service, to include due to repetitive motion of handling heavy refueling hoses while serving on the flight deck of the aircraft carrier, USS Independence. The examiner is asked to fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current respiratory disability. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current respiratory disability that had its onset in service or is otherwise etiologically related to his period of active military service, to include the reported exposure to asbestos while serving planes on the flight deck of the aircraft carrier, USS Independence. The examiner is asked to fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 5. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected bilateral knee osteoarthritis. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected bilateral knee disabilities. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran’s service-connected bilateral knee disabilities. b) For both knees, the examiner should test for pain on motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use over time. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use over time. d) Where the examination does not occur during a flare-up, based upon the evidence of record, and the information elicited on examination, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up limitation of flexion is limited to 30 degrees (the measurement required for the next higher rating), and/or extension is limited to 15 degrees. If limitation of flexion is limited to less than 30 degrees, or limitation of extension is limited to more than 15 degrees, estimate the additional degree of motion loss. e) Additionally, the extent it is possible, based on the Veteran’s reported history and the contemporaneous medical evidence, the examiner should provide an estimate of the functional loss, including loss of range of motion, due to flare-ups or following repeated use over time. If the examiner cannot provide the above-requested estimates based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such an estimate would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 6. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration any newly acquired evidence. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.