Citation Nr: 20006933 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-39 799 DATE: January 28, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a disability manifested by dizziness is remanded. Entitlement to service connection for headache disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for left arm disability manifested by numbness/going dead, is remanded. Entitlement to service connection for a head injury is remanded. FINDING OF FACT The Veteran’s tinnitus is a result of service. CONCLUSION OF LAW The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1959 to May 1962. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefit being sought. The Veteran was scheduled in July 2019 to appear before a Veterans Law Judge (VLJ) at a Travel Board hearing. However, the Veteran failed to appear for the hearing, provide a good cause for his failure to appear or request in writing to reschedule his hearing. 38 C.F.R. § 20.704 (d) (e) (2018). Consequently, his hearing request is deemed withdrawn. The Veteran currently has two other issues pending before the Board: service connection for rhinitis and service connection for sinusitis. However, these issues are not the subject of this opinion, because the Veteran requested a Board hearing for them, and the hearing is in the process of being scheduled. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2018). 38 U.S.C. § 7107 (a)(2) (2012). Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases, i.e., tinnitus. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2018). To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his tinnitus is a result of his hazardous noise exposure in service, and the disability has persisted since. Tinnitus is a condition that is capable of lay observation, and the Veteran’s reports of ringing in her ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002). The first element of a service connection claim is satisfied. The Veteran has been service-connected for bilateral hearing loss, and the VA has conceded acoustic trauma, due to his military occupational specialty (MOS) of communication center specialist. During the January 2015 VA audiology examination, the audiologist noted that the Veteran in an audiogram, “obtained at this facility” in September 2014, noted the Veteran’s “report[s] of tinnitus at that time.” Additionally, of record is a May 2007 treatment note indicating that the Veteran “has noticed gradual hearing loss over the past. [Veteran] also experiences intermittent tinnitus, AU, lasting less than [one] minute and occurring [one-two] times per month.” Tinnitus is considered an “organic disease of the nervous system” under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable concerning tinnitus. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has reported tinnitus, occurring since service. The Veteran is competent to state that he experienced tinnitus since his time in service. Charles, 16 Vet. App. 370. The Board finds the Veteran’s lay statements are both competent and credible, and therefore, a grant based on the continuity of symptomatology is warranted for tinnitus. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for tinnitus. 38 U.S.C. § 5107 (b) (2018). The appeal is, therefore, granted.   REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by dizziness is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a neck disability is remanded. 5. Entitlement to service connection for a left arm disability manifested by numbness/going dead is remanded. 6. Entitlement to service connection for a head injury is remanded. The Veteran contends that the disabilities listed above are a result of a fall he sustained in service in 1959, and for which he received treatment at a VA hospital in the New York City/New Jersey area. He has continuously held that while awaiting his troopship to Germany, between October 15, 1959, and November 16, 1959, he was stationed at the New York Embarkation Center. While there, he was assigned to a clean-up detail around the base hospital. One day while cleaning, he fell, head first, down eight to ten concrete steps, and twisted his ankle and knee, and was knocked unconscious. He was taken to a VA hospital, examined, given crutches, and sent back to the barracks for a few days of rest. As he was deemed too sickly for the ship transport to Germany, he was flown to Germany for his overseas deployment. Once in Germany, the symptoms of his fall, continued to bother him, but because he was stationed in the mountains of the Blue Danube River, near Passau, Germany, where neither sick call nor medical attention was available, he was not treated. Rather, he was told to “suck it up!” Specifically, regarding his chronic headaches and neck pains, he was told to drink water. The Board acknowledges that the military personnel records show that the Veteran was stationed in New York, New York, from October 16, 1959, to November 15, 1959. The personnel record, dated November 15, 1959, shows that he embarked from McGuire Air Force Base, New Jersey, and disembarked at Rhein-Main Air Base, Germany, on November 16, 1959. The Veteran has also contended that the treatment records for the period of hospitalization in the New York City area VA hospital, and 33 days of his service, are missing. Independently, he has made numerous attempts to procure the records but has not had any luck. The VA, however, has not, in its duty to assist, attempted to gather the records or made a formal finding of the unavailability of the records. As the record does not show that the VA has made exhaustive requests to obtain relevant treatment records in the custody of a federal entity, a remand is warranted for said records. 38 C.F.R. § 3.159(c)(2) (2018). Also, VA’s duty to assist includes providing an examination regarding a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury, or event, but there is insufficient information to decide the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran claims that the symptomologies of the above-listed disabilities, have persisted since service and are the result of an in-service fall, which rendered him unconscious. He has provided a July 2016 medical opinion from his treating physician, Dr. M. M., who states that “[i]t is very possible his present conditions started at the time he had an accident in Germany which he has a head trauma, neck injury which eventually led to surgery. Since then, off and on, he has been having symptoms.” While the opinion by Dr. M. M. is not based on facts in evidence, the Veteran relayed the in-service fall information for treatment. Thus, as the evidence of record “indicates” that there “may” be a nexus between the current disabilities and the in-service injury, the low threshold of McLendon has been triggered. Thus, VA examinations are warranted. Id. Accordingly, matters are REMANDED for the following action: 1. Attempt to obtain any outstanding personnel and service treatment records, to include hospitalizations and/or treatment therein, for the period from October 15, 1959, and November 16, 1959, from the appropriate repositories, and associate them with the claims file. The requests for records should continue until it is determined that the records either do not exist or that further requests would be futile. If such a determination is made, a memorandum documented the determination should be affiliated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his dizziness/vertigo. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the January 11, 2015 Emergency Room treatment notes, indicating vertigo onset two days ago, and a diagnosis of vertigo, dizziness, cerebral vascular accident, and Meniere’s disease. The examiner should provide an opinion as to whether any diagnosed dizziness/vertigo disability is at least as likely as not (probability of at least 50 percent) had its onset in and/or is otherwise etiologically related to his period of active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his headaches. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. STRs dated in October 1960 indicating the Veteran’s complaint of a “terrible headache/forehead since yesterday.” The clinician diagnosed an upper respiratory infection/frontal sinusitis. b. STRs dated in November 1960 indicating flare-ups of chronic sinusitis - complaints of congestion and headaches. c. August 2017 statement of the Veteran that his tinnitus causes him to have headaches. The clinician should provide an opinion as to the following: a. Whether any diagnosed headache disability is at least as likely as not (probability of at least 50 percent) had its onset in and/or is otherwise etiologically related to his period of active service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headaches are proximately due to or the result of his service-connected tinnitus. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability is aggravated beyond its natural progression by his service-connected tinnitus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should provide an opinion as to whether any diagnosed right knee disability is at least as likely as not (probability of at least 50 percent) had its onset in and/or is otherwise etiologically related to his period of active service; or if arthritis is diagnosed, within one year of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 5. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his cervical spine disability, to include any neurological manifestations. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s August 2014 statement that the pinching of cervical nerves cased arm to go dead. b. The Veteran’s May 2015 statement indicating that in 1980 his left arm became numb and had a tingling sensation. The examiner should provide an opinion as to the following: a. Whether any diagnosed cervical disability is at least as likely as not (probability of at least 50 percent) had its onset in and/or is otherwise etiologically related to his period of active service; or if arthritis is diagnosed, within one year of service. b. Whether it is at least as likely as not (50 percent or greater probability) that any neurological impairment of the left arm is proximately due to any diagnosed neck disability. c. Whether it is at least as likely as not that any neurological impairment of the left arm is aggravated beyond its natural progression by any diagnosed neck disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 6. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his head injury. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should provide an opinion as to whether any diagnosed head injury, is at least as likely as not (probability of at least 50 percent) had its onset in and/or is otherwise etiologically related to his period of active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 7. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.