Citation Nr: 21031037 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-40 822 DATE: May 20, 2021 ORDER Service connection for tinnitus is granted. REMANDED The appeal regarding entitlement to service connection for a neck disability is remanded. The appeal regarding entitlement to service connection for bilateral upper extremity radiculopathy/neuropathy is remanded. FINDING OF FACT The Veteran's tinnitus began during and has continued since active service and is etiologically related to her military noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from October 1973 to January 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2020 Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing is associated with the claims folder. 1. Service connection for tinnitus is granted. The Veteran contends that her tinnitus is related to noise exposure during active service. Specifically, in her August 2015 notice of disagreement, she stated that her tinnitus was caused by exposure to the noise of M16s and .45 pistols on the firing range, as well as riding in the back of 2.5 ton diesel trucks and constant exposure to the engine noise of semi-trailer trucks as part of her job as warehouse assistant manager. Her claim has been denied because the RO determined that she did not have military noise exposure. She has not been afforded a VA audiological examination, nor has a VA opinion been obtained with regard to the etiology of her tinnitus. For the reasons discussed below, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus began during and has continued since her active service, and, resolving reasonable doubt in the Veteran's favor, finds that service connection for tinnitus is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records are negative for any complaints or reports of tinnitus. However, based on the Veteran's statements and testimony at the Board hearing regarding her duties and noise exposure during active service, the Board finds that she was exposed to loud noise during active service. Moreover, the Veteran has competently and credibly stated, including in her July 2017 VA Form 9 and at the Board hearing, that she has experienced ringing in her ears beginning in basic training and continuing to the present, and that, following service separation, she did not have occupational or recreational noise exposure. The Board finds that such continuity of symptomatology from active service establishes a nexus to active service. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus began during and has been continuous since active service, and that, therefore, the Veteran's tinnitus is related to her military noise exposure, and service connection is warranted. REASONS FOR REMAND 1. The appeal regarding entitlement to service connection for a neck disability is remanded. 2. The appeal regarding entitlement to service connection for bilateral upper extremity radiculopathy/neuropathy is remanded. The Board finds that a remand is required with regard to the claimed neck disability and bilateral upper extremity radiculopathy/neuropathy. First, VA treatment records from December 2004 indicate that the Veteran was seen by a private physician for neck pain and cervical spine symptoms and was placed on Neurontin for cervical radicular pain. VA treatment records from January 2006 indicate that an MRI was conducted by the private treatment provider in May 2004 and showed a herniated disc at C6-C7 with some protrusion to the lateral recesses, and that an EMG study was also conducted by that provider. However, these private treatment records are not associated with the claims file. The Board finds that a remand is necessary to attempt to obtain these private treatment records. Next, while the Veteran was afforded a VA neck examination in August 2017, the examiner only provided an opinion as to whether the claimed neck disability was caused or aggravated by the service-connected lower extremity radiculopathy or lumbar spine disability, and did not address whether the neck disability is directly related to events in active service. Specifically, the Veteran has stated that she believes that her neck disability was caused by lifting heavy mail bags, often in excess of 70 pounds, on a repetitive basis while working as a warehouse assistant manager in active service. In addition, she has stated that she injured her neck on 2 occasions in service once in 1975 when she was pushed onto a table by another soldier when he tried to attack her with a pen, causing her to hit her neck, and again in 1977, when she fell on some concrete steps and hit her back, neck, and shoulders as she fell. A remand is required for a VA examiner to address whether the current neck disability is related to these events in service. The Board also notes that the August 2017 VA examiner diagnosed a cervical strain and indicated that no imaging studies were reviewed (nor were any new imaging studies conducted), despite the VA treatment records showing a 2004 MRI study which revealed a herniated disc. The examiner also found no signs or symptoms of cervical radiculopathy, but did not mention the 2004 VA treatment records showing that the Veteran was treated for cervical radicular pain with Neurontin, or the repeated listing of cervical radiculopathy as a diagnosis in her more current VA treatment records. Therefore, on remand, the Veteran should be afforded a peripheral nerves examination to determine the nature and etiology of the claimed bilateral upper extremity radiculopathy/neuropathy, as she has not been afforded an examination specific to that disability. Both the VA neck and peripheral nerves examiners should specifically review the 2004 VA treatment records discussing the MRI study of the cervical spine and treatment for cervical radiculopathy with Neurontin, and, if unable to review the actual studies or render a diagnosis based on those records, should conduct any studies deemed necessary (e.g., x-ray, MRI, EMG/NCV, etc.) or explain why new studies are not necessary. Finally, the Veteran has contended that she was exposed to multiple chemicals, including but not limited to Agent Orange, while stationed at Fort McClellan. In February 2015, she submitted several articles discussing toxins at Fort McClellan, including one that indicated that the drinking water was contaminated, and another that stated that between 1933 and 1999, Fort McClellan was constantly exposed to major biochemical health hazards, including ionizing radiation and polychlorinated biphenyls (PCBs). In March 2015, VA Compensation Service stated that, regarding these claims, the DoD list did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at Fort McClellan, Alabama. VA had received no medical or scientific literature of any environmental contamination hazards at Fort McClellan, Alabama. Therefore, Compensation Service could provide no evidence to support the claimed Agent Orange exposure. However, VA Compensation Service stated that unless the claim was inherently incredible or clearly lacked merit [see 38 C.F.R. § 3.159(d)(2)], it should be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) for any information that organization can provide to corroborate the Veteran's claimed exposure. JSRRC should be provided with the Veteran's military unit, its location, and dates of the Veteran's service at the location, as shown by the Veteran's actual military records. Several days later in March 2015, the RO issued an Administrative Decision stating that the information required to verify herbicide exposure was insufficient to send to JSRRC for research of unit records. However, the Board finds that the Veteran has provided significant detail regarding the claimed chemical exposure (e.g., articles submitted in February 2015 and July 2017 VA Form 9). Her service personnel records show that she was transferred to Fort McClellan in October 1973; it is unclear when she left Fort McClellan, although her Record of Assignments indicates that she was transferred to Germany in March 1974. The Board finds that a remand is required to submit a request to the JSRRC to research the Veteran's unit records for chemical exposure at Fort McClellan. The VA examiner should also be asked to render an opinion as to whether the claimed upper extremity neuropathy/radiculopathy could be etiologically related to chemical exposure. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate release form(s) necessary to request any and all private treatment records pertaining to treatment for the claimed neck disability and bilateral upper extremity radiculopathy/neuropathy not yet associated with the claims file, specifically those from the private physician who conducted a cervical spine MRI study in May 2004 and prescribed Neurontin for cervical radicular pain around that time. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and her representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. A request should be sent to the JSRRC to attempt to verify the Veteran's claimed chemical exposure while stationed at Fort McClellan, Alabama, to include Agent Orange, contaminated drinking water, ionizing radiation, and polychlorinated biphenyls (PCBs). JSRRC should be provided with the Veteran's military unit, its location, and dates of the Veteran's service at the location, as shown by the Veteran's actual military records. Any response received from the JSRRC should be associated with the claims file. 3. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of her neck disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current neck disorders. The examiner should specifically comment on the May 2004 MRI study of the cervical spine showing a herniated disc and referenced in the Veteran's VA treatment records in rendering a diagnosis; if the actual MRI study is not available or if references to the study are insufficient to render a diagnosis, the examiner should conduct any imaging studies deemed necessary (e.g., x-ray, MRI, etc.) or explain why such studies are not necessary to render an accurate diagnosis. (b.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's neck disability was incurred during or caused by active service? The examiner should discuss the Veteran's credible statements that she lifted mail bags often in excess of 70 pounds on a repeated basis during active service, as well as her account of injuries to her neck when she was attacked by another soldier in 1975 and when she fell on concrete steps in 1977. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of her bilateral upper extremity radiculopathy/neuropathy. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current neurological disorders of the upper extremities. The examiner should specifically comment on the 2004 VA treatment records showing that the Veteran was prescribed Neurontin to treat cervical radicular pain, that an EMG study was conducted by a private treatment provider around that time, and the more current VA treatment records showing a diagnosis of cervical radiculopathy in rendering a diagnosis; if the actual private treatment records from 2004, including the EMG study, are not available or if references to such treatment are insufficient to render a diagnosis, the examiner should conduct any studies deemed necessary (e.g., EMG/NCV) or explain why such studies are not necessary to render an accurate diagnosis. (b.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's bilateral upper extremity radiculopathy/neuropathy was incurred during or caused by active service, to include as a result of chemical exposure (e.g., Agent Orange, contaminated drinking water, ionizing radiation, and polychlorinated biphenyls (PCBs))? (c.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's current bilateral upper extremity radiculopathy/neuropathy was caused or aggravated by the claimed neck disability? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.