Citation Nr: 20042563 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-28 796 DATE: June 24, 2020 ORDER The appeal of the issue of entitlement to service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for an upper back disability is remanded. Entitlement to service connection for a middle back disability is remanded. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating higher than 10 percent for right hip arthralgia and tendinopathy, based on limitation of extension, is remanded. Entitlement to an initial rating higher than 10 percent for left hip arthralgia and tendinopathy, based on limitation of extension, is remanded. Entitlement to an initial higher (compensable) rating for right hip arthralgia and tendinopathy, based on limitation of flexion, is remanded. Entitlement to an initial higher (compensable) rating for left hip arthralgia and tendinopathy, based on limitation of flexion, is remanded. Entitlement to an initial higher (compensable) rating for impairment of the right thigh is remanded. Entitlement to an initial higher (compensable) rating for impairment of the left thigh is remanded. Entitlement to an initial rating higher than 30 percent for migraine headaches is remanded. FINDINGS OF FACT 1. At the January 2020 hearing before the Board, the Veteran withdrew his appeal concerning the issue of entitlement to service connection for bilateral hearing loss. 2. The Veteran’s current tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 2009 to December 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal of February 2014 and March 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The February 2014 RO decision granted service connection and a 30 percent rating for PTSD, effective December 7. 2012; granted service connection and a 10 percent rating for right hip arthralgia and tendinopathy, based on limitation of flexion, effective December 7, 2012; granted service connection and a 10 percent rating for left hip arthralgia and tendinopathy, based on limitation of extension, effective December 7, 2012; granted service connection and a noncompensable rating for right hip arthralgia and tendinopathy, based on limitation of flexion, effective December 7, 2012; granted service connection and a noncompensable rating for left hip arthralgia and tendinopathy, based on limitation of flexion, effective December 7, 2012; and granted service connection and a noncompensable rating for migraine headaches, effective December 7, 2012. By this decision, the RO also denied service connection for an upper back disability (listed as an upper back injury); a middle back disability (listed as a middle back injury); bilateral hearing loss; and for tinnitus. An October 2014 RO decision recharacterized the Veteran’s service-connected PTSD, as an unspecified depressive disorder, and continued a 30 percent rating. The March 2017 RO decision recharacterized the Veteran’s service-connected unspecified depressive disorder, as PTSD, and continued a 30 percent rating. By this decision, the RO also granted a separate noncompensable rating for impairment of the right thigh (impairment of the right thigh, right hip), effective March 2, 2017, and granted a separate noncompensable rating for impairment of the left thigh (impairment of the left thigh, left hip), effective March 2, 2017. The RO further increased the rating for the Veteran’s service-connected migraine headaches to 30 percent, effective December 7, 2012. In January 2020, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. The Board observes that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence indicates that the Veteran is currently working. Thus, the issue of entitlement to a TDIU is not currently before the Board. 1. Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the January 2020 Board hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for bilateral hearing loss. Thus, there remain no allegations of errors of fact or law for appellate consideration as to that issue. As such, the Board does not have jurisdiction to review the appeal, and the issue of entitlement to service connection for bilateral hearing loss is dismissed. 2. Tinnitus Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, 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. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he has tinnitus that is related to service. He reports that he has tinnitus as a result of acoustic trauma during service while serving as a truck driver. He reports noise exposure from trucks, as well as from shooting at rifle ranges. The Veteran indicates that he noticed ringing in the ears when he returned from Korea and he was stationed at Fort Hood in Texas. He essentially asserts that he experienced ringing in the ears during service and since that time. The Veteran served on active duty in the Army from July 2009 to December 2012. His DD Form 2014 lists his occupational specialty as a motor transport operator. The Veteran’s service treatment reports are incomplete. His available service treatment records do not show treatment for tinnitus. Post-service private and VA treatment records, including VA examination reports, show treatment for tinnitus. A January 2014 VA audiological examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he first noticed tinnitus during service after being on gun ranges. He stated that, at first, his tinnitus was intermittent, but that, presently, he has it all the time. The diagnoses included tinnitus. The examiner indicated that it was less likely as not (less than 50 percent probability) that the Veteran’s tinnitus was caused by, or a result of, his military noise exposure. The examiner stated that the Veteran reported that his tinnitus was first noticed in service, but that it was temporary in nature, and was related to instances of noise exposure (e.g. gun ranges) and would later subside. The examiner that the onset of the Veteran’s constant tinnitus was after his military service and that there was no clear association between the current constant tinnitus, and the previous intermittent tinnitus that occurred during military service. A July 2016 VA audiological examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he had military noise exposure from truck noise, and for shooting on rifle ranges. As to noise exposure after his period of service, the Veteran stated that he worked in machinery and wore hearing protection. The Veteran reported that the onset of his tinnitus occurred in 2011 when he served in Afghanistan. The diagnoses included tinnitus. The examiner indicated that the Veteran had a diagnosis of clinical hearing loss, and that his tinnitus was at least as likely as not (50 percent probability or great) a symptom associated with the hearing loss, as tinnitus was known to be a symptom associated with hearing loss. The examiner also maintained that it was less likely than not (less than 50 percent probability) that the Veteran’s tinnitus was caused by, or a result of, his military noise exposure. The examiner stated that the Veteran’s tinnitus was related to his hearing loss, which was not caused by his military service. The examiner indicated that, therefore, the Veterans’ tinnitus was less likely than not caused by, or due to, his military noise exposure. The Board notes that there are negative opinions, as to the etiology of the Veteran’s tinnitus, pursuant to the January 2014 and July 2016 VA audiological examination report, respectively. The Board observes that the examiner, pursuant to the January 2014 VA audiological examination report, following a review of the Veteran’s claims file indicated that it was less likely as not that the Veteran’s tinnitus was caused by, or a result of, military noise exposure. The examiner stated that the Veteran reported that his tinnitus was first noticed in service, but that it was temporary in nature, and was related to instances of noise exposure (e.g. gun ranges) and would later subside. The examiner specifically maintained that the onset of the Veteran’s constant tinnitus was after his military service and that there was no clear association between the current constant tinnitus, and the previous intermittent tinnitus that occurred during military service. The Board notes that the examiner did not provide much in the way of a rationale for her opinion that there was no clear association between onset of the Veteran’s constant tinnitus and his intermittent tinnitus during service. Additionally, the examiner did not specifically address the Veteran’s reports of tinnitus during service and since service. The Board notes that the Veteran is competent to report that he had ringing in the ears during service and ringing in the ears since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the opinions from the VA examiner, pursuant to the January 2014 VA audiological examination report, are not very probative in this matter. Additionally, the Board notes that the examiner, pursuant to the July 2016 VA audiological examination report, following a review of the claims file, indicated that it was less likely than not that the Veteran’s tinnitus was caused by, or a result of, his military noise exposure. The examiner stated that the Veteran’s tinnitus was related to his hearing loss, which was not caused by his military service. The Board observes that the examiner did not address the Veteran’s reports of tinnitus during service and since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the opinions from the examiner, pursuant to the July 2916 VA audiological examination report, are also not probative in this matter. The Board observes that the Veteran is competent to report in-service tinnitus, continuous tinnitus symptomatology since service, and current symptoms that form the basis for diagnosis of disability. Moreover, the Board finds that the Veteran’s reports are credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007). In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against the claim for service connection for tinnitus. Resolving any doubt in the Veteran’s favor, the Veteran has tinnitus that had its onset during his period of service. Service connection for tinnitus is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The remaining issues on appeal are entitlement to service connection for an upper back disability; entitlement to service connection for a middle back disability; entitlement to an initial rating higher than 30 percent for PTSD; entitlement to an initial rating higher than 10 percent for right hip arthralgia and tendinopathy, based on limitation of extension; entitlement to an initial rating higher than 10 percent for left hip arthralgia and tendinopathy, based on limitation of extension; entitlement to an initial higher (compensable) rating for right hip arthralgia and tendinopathy, based on limitation of flexion; entitlement to an initial higher (compensable) rating for left hip arthralgia and tendinopathy, based on limitation of flexion; entitlement to an initial higher (compensable) rating for impairment of the right thigh; entitlement to an initial higher (compensable) rating for impairment of the left thigh; and entitlement to an initial rating higher than 30 percent for migraine headaches. Service connection is in effect for thoracolumbar strain, with myofascial pain. He is also service-connected for PTSD; right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; impairment of the left thigh; sleep apnea; rhinitis; and migraine headaches. As discussed above, the Veteran is also now service-connected for tinnitus. The Veteran contends that he has an upper back disability and a middle back disability that are related to service. He reports that he filed claims for upper back and middle back problems while he was still in the military. The Veteran essentially asserts that his upper back and middle back problems began during service and have continued since that time. The Veteran’s service treatment reports are incomplete. His available service treatment records show treatment for back complaints. A February 2011 listing of treatment at a Department of Defense facility notes that the Veteran was diagnosed with lumbago. Another February 2011 listing of treatment at a Department of Defense facility, on that same, indicates that the Veteran was diagnosed with a backache, unspecified. Post-service private and VA treatment records, including VA examination report, show treatment for back problems, including a backache, acute or chronic back pain; lumbosacral strain; and thoracolumbar strain, with myofascial pain. A January 2015 back conditions examination report includes a notation that the Veteran’s claims file was reviewed. The diagnoses were lumbosacral strain, and thoracolumbar strain, with myofascial pain. The examiner indicated that the Veteran’s claimed condition was at least as likely as not (50 percent or greater probability) incurred in, or caused by, the claimed in-service injury, event, or illness. The examiner reported that back pain was noted in the Veteran’s service treatment records, as well as currently, with no prior history. The examiner stated that, therefore, in his opinion, the Veteran’s thoracolumbar back strain, with myofascial pain, was at least as likely as not secondary to service duty. The Board observes, as noted above, that the Veteran is already service-connected for thoracolumbar strain, with myofascial pain. The examiner did not specifically indicate if the Veteran had a diagnosed upper back disability and/or a middle back disability, other than the already service-connected thoracolumbar strain, with myofascial pain. In light of the above, the Board finds that the Veteran must be afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claims for service connection for an upper back disability and for a middle back disability. Such an examination must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the Veteran’s claim for a higher rating for his service-connected PTSD, the Board notes that he was last afforded a VA psychiatric examination in March 2017. The diagnosis was PTSD, chronic. Since that time, at the January 2020 Board hearing, the Veteran testified that his anxiety and panic attacks had worsened since his March 2017 VA psychiatric examination. The Board notes that the Veteran has not been afforded a VA examination, as to his service-connected PTSD, in well over three years. Additionally, the record clearly raises a question as to the current severity of his service-connected disability. As such, the Board finds it necessary to remand this matter to afford him an opportunity to undergo a contemporaneous VA examination, as to his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As to the Veteran’s claims for higher ratings for right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and for impairment of the left thigh, the Board notes that the Veteran was last afforded a VA hip and thigh conditions examination in March 2017. The diagnoses were right hip tendinopathy and left hip tendinopathy. Since that time, at the Veteran reported that he had a lot discomfort and pain in his bilateral hips and thighs. He indicated that he would sometimes have exacerbations or flare ups of pain in his legs. The Veteran further stated that he would have flare-ups with locking. Additionally, the Board notes that the U.S Court of Appeals for Veteran’s Claims (Court) has issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA examinations. The Court in Sharp held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” In light of this decision, and as the findings pursuant to the March 2017 VA hip and thigh conditions examination report, noted above, are inadequate, the Board finds that new a VA examination should be provided addressing the Veteran’s service-connected right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and impairment of the left thigh. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, as to the Veteran’s claim for a higher rating for migraine headaches, the Board notes that a February 2014 RO decision granted service connection and a noncompensable rating for migraine headaches, effective December 7, 2012. In August 2013, the Veteran expressed disagreement with the rating assigned for his service-connected migraine headaches. He indicated that he was seeking a 30 percent rating for his migraine headaches; however, the Veteran did not indicate that a grant of the 30 percent rating would satisfy his appeal of this issue. That notwithstanding, a March 2017 RO decision increased the rating for the Veteran’s service-connected migraine headaches to 30 percent, effective December 7, 2012. The RO indicated that such was a full grant of benefits sought on appeal. As such, the RO has not issued a statement of the case as to the issue of entitlement to an initial rating higher than 30 percent for migraine headaches. The Board notes, however, the RO also apparently certified the issue of entitlement to an initial rating higher than 30 percent for migraine headaches to the Board. The Veteran also testified, as to that issue, at the January 2020 Board hearing. Under the circumstances, the Board finds it necessary to remand the issue of entitlement to an initial rating higher than 30 percent for migraine headaches for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for an upper back disability; a middle back disability; PTSD; right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and for impairment of the left thigh, since October 2016. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed upper back disability and lower back disability, as well as the nature, extent, and severity of his service-connected PTSD; right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and for impairment of the left thigh, and the impact of those conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and/or etiology of his claimed upper back disability and middle back disability. The claims file must be reviewed by the examiner. The examiner must diagnose all current upper back disabilities, other than thoracolumbar strain, with myofascial pain, and middle back disabilities, other than thoracolumbar strain, with myofascial pain. The examiner must provide a medical opinion as to whether it is at least as likely as not that any currently diagnosed upper back disabilities, other than thoracolumbar strain, with myofascial pain, and middle back disabilities, other than thoracolumbar strain, with myofascial pain, are related to and/or had their onset during the Veteran’s periods of service. The examiner must state whether it is at least as likely as not that any diagnosed upper back disabilities, other than thoracolumbar strain, with myofascial pain, and middle back disabilities, other than thoracolumbar strain, with myofascial pain, are caused or aggravated by Veteran’s service-connected thoracolumbar strain, with myofascial pain, or any other service-connected disabilities. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the extent and severity of his PTSD. The claims file must be reviewed by the examiner. All indicated tests must be conducted and all symptoms associated with the Veteran’s service-connected PTSD must be reported in detail. 5. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the extent and severity of his service-connected right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and for impairment of the left thigh, All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran’s service-connected right hip arthralgia and tendinopathy, based on limitation of extension; left hip arthralgia and tendinopathy, based on limitation of extension; right hip arthralgia and tendinopathy, based on limitation of flexion; left hip arthralgia and tendinopathy, based on limitation of flexion; impairment of the right thigh; and impairment of the left thigh, must be described in detail. Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran’s right hip; left hip; right thigh; and left thigh, and provide diagnoses of any pathology found. 6. Issue the Veteran a statement of the case as to the issue of entitlement to an initial rating higher than 30 percent for migraine headaches. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.