judge_norm: J K BARONE

text:
Citation Nr: 1123000
Decision Date: 06/15/11    Archive Date: 06/28/11

DOCKET NO.  05-34 201	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for hypertension.

2.  Entitlement to service connection for loss of sense of smell.

3.  Entitlement to service connection for a right eye disorder.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Fleming, Associate Counsel

INTRODUCTION

The Veteran had active military service from November 1958 to December 1960, from September 1986 to December 1986, from January 1987 to October 1987, and from January 1991 to March 1991, as well as periods of active duty for training.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  In that decision, the RO denied the Veteran's petition to reopen previously denied claims for service connection for a loss of smell, a right eye disorder, and hypertension, finding that no new and material evidence had been submitted.

In May 2009, the Board reopened the Veteran's claims for service connection for a loss of smell and a right eye disorder and remanded the merits of the issues to the agency of jurisdiction for further development of the claims. The Board also remanded the Veteran's petition to reopen his previously denied claim of service connection for hypertension in the May 2009 decision for further notification, evidentiary development, and adjudication.  The Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with VCAA-compliant notice; confirm his dates of service, including dates of active duty for training; provide the Veteran with VA examination; and then re-adjudicate the claims.  The AOJ sent the Veteran VCAA-compliant notice letters and scheduled him for VA examinations, which were conducted in November 2009 and January 2010.  The Veteran was then provided supplemental statements of the case in October 2010, in which the AOJ again denied the Veteran's claims for service connection for a loss of smell and a right disorder and his petition to reopen his previously denied claim of service connection for hypertension, finding that no new and material evidence had been submitted.  Thus, as to the claim decided herein, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Regardless of what the RO has done, however, the Board must address the question of whether new and material evidence has been received to reopen the Veteran's claim for service connection for hypertension.  This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Hence, the Board has characterized the claim for service connection for hypertension as a claim to reopen.

The Veteran's petition to reopen his previously denied claim of service connection for hypertension, as well as the issue of entitlement to service connection for a right eye disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran likely has anosmia that is attributable to his active military service.

CONCLUSION OF LAW

The Veteran has anosmia that is the result of disease or injury incurred during active military service.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes at the outset that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. � 5100 et seq; 38 C.F.R. �� 3.102, 3.156, 3.159, 3.326(a) (2010).  This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements.  Without deciding whether the notice and development requirements of the VCAA have been satisfied with respect to the claim for service connection for anosmia, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the claim.  This is so because the Board is taking action favorable to the Veteran by granting service connection for anosmia, which represents a full grant of the issue decided herein.  A decision therefore poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992), 57 Fed. Reg. 49,747 (1992).

The Veteran is seeking service connection for a loss of smell.  Specifically, he asserts that he first experienced a loss of smell following an exercise in which he was exposed to gas when he was told to remove his gas mask in a gas chamber.  He was treated for complaints of a loss of smell during service and now contends that he has continued to experience the same symptomatology as was first treated in service and has continued to suffer from a loss of smell from his time in service to the present.  As a result, the Veteran contends that service connection is warranted.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).  To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease.  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.  38 C.F.R. � 3.303(b).

Relevant medical evidence of record consists of the Veteran's service treatment records as well as a VA examination conducted in January 2010.  Also of record are documentation of treatment the Veteran has received both from private treatment providers and from the VA Loma Linda Healthcare System.  Review of the Veteran's service treatment records reveals that he was found to have a normal nose at service medical examinations conducted in November 1958, June 1960, and August 1984.  However, he was treated in September 1986 for complaints of a lost sense of smell following an incident in which he was exposed to chemical fumes in a gas chamber exercise.  At follow-up treatment visits in October 1986 and November 1986 he was diagnosed with anosmia, which was noted to be "probably secondary to gas chamber fumes."  Similarly, a February 1987 in-service treatment visit noted the Veteran to have a lost sense of smell "most likely following gas chamber drill - possibly with contributing factors from allergic rhinitis and/or smoking."'  On later reports of medical examination dated in May 1988 and June 1992, the Veteran responded "Yes" when asked if experienced ear, nose, or throat trouble.

Post-service medical records from the Loma Linda VA facility reflect that the Veteran has received ongoing treatment for a diagnosed chronic rhinitis and was treated in April 2001 for anosmia, which his treatment provider opined was "probably due to trauma."  Similarly, private records reflect that the Veteran has made ongoing complaints to his treatment providers concerning a loss of smell in the years since service.  He was diagnosed with anosmia in August 2005 and has since continued to receive treatment for anosmia with private and VA providers.

Pursuant to the Board's May 2009 remand, a VA examination concerning the Veteran's claim for service connection for a loss of smell was conducted in January 2010.  Report of that examination reflects that the VA examiner reviewed the Veteran's medical history and his complaints.  He noted that the Veteran reported that his loss of smell began in 1986 after an incident in which he was instructed to enter a gas chamber and remove his gas mask.  Following that incident, during which the Veteran reported having to run out of the gas chamber when he became unable to breathe, he stated that he has been unable to smell anything.  He reported having sought treatment both during and after service but stated that he was told there was no treatment available for his loss of smell.  Physical examination revealed that the ability to smell cloves was absent in both nostrils, but the Veteran did report a "queasiness" following exposure to odors despite not being able to smell them.  The examiner reviewed the Veteran's claims file, including the service treatment records documenting his complaints of loss of smell following a gas chamber drill, but concluded that his current anosmia is not related to the in-service event or treatment for loss of smell.  Rather, the VA examiner opined that the Veteran's current anosmia is related to his chronic rhinitis and history of smoking.  In so finding, the examiner reasoned that the Veteran experienced only acute anosmia in service but that the condition "dissipated, and the Veteran was then left with ... anosmia related to the smoking and repeated bouts of allergic rhinitis."

The Veteran has also submitted multiple written statements to VA in support of his claim.  In these statements, the Veteran has contended that he first experienced a loss of smell while serving on active duty, when he was instructed to enter a gas chamber and remove his gas mask, inhaling chemical fumes, and that he sought treatment for the loss of smell soon thereafter.  The Veteran has further stated on multiple occasions, including in his September 2005 VA Form 9 (Appeal to Board of Veterans Appeals) that he first sought treatment for the loss of smell in service and has continued to experience a loss of smell from his time in service until the present.

With respect to the Veteran's contention that he first experienced a loss of smell on active duty that has continued to the present, the Board looks to the Veteran's statements concerning continuity of symptomatology.  The Veteran has stated on multiple occasions that he first experienced a loss of smell during service, for which he sought treatment, and that he has continued to experience a loss of smell since that time.  Given this evidence, which is supported by service treatment records documenting the Veteran's in-service complaints of a loss of smell and his ongoing VA and private treatment records showing his consistent complaints of a loss of smell, the Board finds the Veteran to be credible in his statements that he first experienced a loss of smell while on active duty and has continued to experience similar symptomatology since that time.

The Board acknowledges that the January 2010 VA examination report contains an opinion adverse to the Veteran's claim.  It appears, however, that that opinion was based, at least in part, on the examiner's failure to consider the Veteran's consistent and credible statements that he first experienced a loss of smell in service and has continued to experience the same symptomatology since that time, with no interruption or improvements in his stated symptoms.  In particular, the Board acknowledges that the VA examiner found the in-service anosmia to have been "acute" but finds that it is unclear from the report of examination how the examiner determined whether and at what point the acute condition resolved and was replaced by chronic anosmia, given the Veteran's consistent reports that his symptomatology has remained unchanged since the 1986 in-service incident.  The Board thus concludes that the January 2010 VA examiner's statement is of limited probative value to the extent that he failed to take into account the continuity of symptomatology of the Veteran's loss of smell.  The Board notes that the Veteran's primary stated symptom, as confirmed by multiple treatment providers, is a loss of smell.  The Board concludes that such a symptom is capable of lay observation.  The Board further notes that the sole negative medical opinion, offered at the Veteran's January 2010 VA examination, appears to have been provided without regard to the Veteran's history of having experienced the same symptomatology from his time in service to the present.

Considering the credibility of the statements by the Veteran attesting to the fact that he first suffered symptoms of a loss of smell during service, as well as his repeated treatment for a loss of smell at both VA and private facilities, the Board finds that the Veteran has supplied sufficient evidence to establish continuity of symptomatology of a loss of smell since service.  The Board finds that such a conclusion is bolstered by the Veteran's 1986 service treatment records documenting his in-service complaints of a loss of smell following a gas chamber exercise, which was found by his service treatment providers to be "probably" related to the described incident, as well as the Veteran's consistent statements to both private and VA treatment providers that he has consistently experienced a loss of smell since service.  Resolving reasonable doubt in the Veteran's favor, the Board thus concludes that the Veteran currently suffers from anosmia that is traceable to his time on active duty.  Based on the foregoing, the Board finds that service connection is warranted.  See 38 U.S.C.A. �� 1110, 1131, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to service connection for anosmia is granted.

REMAND

The Board finds that further evidentiary development is necessary before a decision can be reached on the Veteran's petition to reopen his previously denied claim of service connection for hypertension, as well as the merits of his claim for a right eye disability.  The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Court has indicated that, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance.  Id.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).  To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Every Veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. �� 1111, 1137 (West 2002).  To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23,027 (May 4, 2005).  Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. � 1153 (West 2002).

Regarding the Veteran's claimed hypertension, review of the claims file reflects that he was seen in June 1960 for complaints of pain in his chest.  No diagnosis was assigned at that time, and no follow-up treatment was documented.  He was noted to have normal blood pressure at his October 1960 separation from service; at that time, no problems with his heart or circulatory system were noted.  The Veteran was first diagnosed with hypertension in January 1991, one week before he entered a period of active duty.  At that time, he was seen initially for chest pain and was diagnosed with hypertension, for which he has received ongoing treatment since.  Numerous records in the claims file document the Veteran's ongoing treatment for the condition.  However, no entrance examination is of record for the Veteran's period of service beginning in January 1991.

Regarding the Veteran's claim for service connection for a right eye disorder, records reflect that the Veteran was found to have normal eyes at his November 1958 entrance examination, with 20/20 vision in the right eye.  Although no treatment record is present to document an in-service injury, the Veteran's October 1960 separation examination reflects a finding of "permanate [sic] damage to the vision of the right eye due to liouma.  May 1959."  At that time, he was found to have vision in the right eye correctable only to 20/30.  Since that time, the Veteran has received ongoing ophthalmological care and has been found to have defective right eye vision on multiple occasions, including at a December 1964 VA examination.  Ongoing private vision care reflects that the Veteran has been diagnosed with blepharitis and suspected glaucoma and has been seen for complaints of itching, pain, and tearing in the eyes as well as defective vision.

Pursuant to the Board's May 2009 remand, the agency of original jurisdiction (AOJ) afforded the Veteran VA examinations concerning both his right eye and hypertension claims in November 2009.  Regarding the hypertension examination, the examiner conducted a physical evaluation and diagnosed the Veteran with hypertension as well as coronary artery disease and congestive heart failure and noted that the hypertension pre-existed the Veteran's period of active duty beginning in January 1991.  The examiner further stated that the Veteran's in-service complaints of chest pain can have "numerous etiologys [sic]."  In a September 2010 addendum opinion, the examiner offered a list of risk factors for hypertension displayed by the Veteran and opined that his period of active duty "did not worsen his hypertension."  The examiner further opined that any worsening in the Veteran's hypertension during active duty was a "natural progression of his pre-existing illness."  However, the examiner did not discuss whether there is clear and unmistakable evidence both that the Veteran's hypertension pre-existed service and that any increase in severity of the disorder due to service was due to the natural progression of the disease.

The Veteran also underwent examination in November 2009 concerning his right eye claim; the report reflects that the examiner noted the Veteran's complaint of having burned his right eye in service due to cigarette ash.  The examiner conducted an ophthalmological examination of the Veteran, diagnosing him with a refractive error as well as several other possible ophthalmological disorders.  However, the examiner failed to offer any opinion as to the etiology of the Veteran's defective vision or any of the other diagnosed disorders.

Regarding the Veteran's hypertension claim, as noted above, the presumption of soundness may be rebutted by clear and unmistakable evidence both that hypertension existed prior to service and was not aggravated by such service.  The Court has described the clear and unmistakable standard as an onerous one consisting of evidence that is undebatable.  See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999).  Here, as noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of hypertension.  The evidence also clearly documents that he was treated for hypertension in service.  Relevant medical evidence suggests that the Veteran's hypertension predated his entry into service; however, these documents are dated only a week prior to the Veteran's entry into service in January 1991.  The Board notes, further, that because no medical examination was conducted at the time of the Veteran's entry onto active duty in January 1991, no hypertension was noted at the time of entry; thus, the Veteran is entitled to the presumption of soundness, which as noted above can be overcome only by clear and unmistakable evidence that the disability both pre-existed service and was not worsened thereby.  The Board thus concludes that a further medical opinion is required to determine whether the Veteran had hypertension that both clearly and unmistakably pre-existed service and was clearly and unmistakably not worsened thereby.

Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:  1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the claimant suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease.  38 C.F.R. � 3.159(c)(4) (2010).  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold.  The Board further notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as current symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495 (1997); Washington v. Nicholson, 19 Vet. App. 362 (2005).  However, he cannot testify, as he would be medically incompetent to do, about a diagnosis or the etiology of any current disability.  Id.; see also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Further, once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").

In this case, although it appears that the November 2009 VA examiner conducted a proper evaluation of the Veteran's physical condition at the time, the Board notes that the examination report reflects that the examiner did not address whether there is clear and unmistakable evidence both that the Veteran's hypertension pre-existed service and was worsened thereby beyond the natural progression of the disease.  Further, as regards the Veteran's right eye claim, although it appears that the November 2009 VA ophthalmologic examiner conducted a proper evaluation of the Veteran's physical condition at the time, the Board notes that the examination report reflects that the examiner did not provide an opinion as to whether the Veteran's defective vision of the right eye, or any other ophthalmologic disorder is etiologically linked to his time on active duty.  The Board thus finds that the November 2009 VA examiners' opinions are inadequate.  In this regard, the Board notes that any medical opinion must be based on sufficient facts and data.  See 38 C.F.R. � 4.2 (2010) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (establishing that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions).

Thus, the Board finds that there is insufficient competent medical evidence on file to make a decision on these issues.  The Board will therefore remand to obtain current diagnoses and medical nexus opinions based on a thorough review of the Veteran's claims file, including his stated contentions and medical history.  Specifically, the examiner who conducted the November 2009 VA hypertension examination must first address whether there is clear and unmistakable evidence that the Veteran's hypertension existed prior to service.  If such evidence is found, the examiner must then address whether there is clear and unmistakable evidence that the hypertension was not aggravated by the Veteran's service beyond the normal progression of the disease.  If the Veteran's hypertension is not found to have clearly and unmistakably pre-existed service, the examiner should also address whether the Veteran's current hypertension is at least as likely as not related to his time in service.  A full rationale must be provided for all findings.  Further, the ophthalmological examiner who conducted the November 2009 VA examination of the Veteran's right eye must review the Veteran's claims file and provide a medical nexus opinion regarding the etiology of the Veteran's claimed right eye disorder.  See McLendon, 20 Vet. App. 79.  Specifically, the examiner must opine as to whether it is at least as likely as not that any diagnosed right eye disorder is related to the Veteran's periods of service.

If further examination of the Veteran is necessary, such must be undertaken and such findings included in the examiners' final reports.  The AOJ must arrange for the Veteran to undergo examination, however, only if the VA examiners who conducted the November 2009 hypertension and eye examinations are unavailable, or if such examination is needed to answer the questions posed.

In view of the foregoing, the case is REMANDED for the following action:

1.  The Veteran's claims file must be referred to the physicians who conducted the November 2009 VA examinations.  The entire claims file, to include a complete copy of this remand, must be made available and reviewed by the examiners.  The reviewers' reports must reflect consideration of the Veteran's documented medical history and assertions.

Hypertension examination-The examiner must review the Veteran's claims file, including his in-service complaints of chest pain in June 1960 and his January 1991 diagnosis of hypertension, and opine as to whether there is clear and unmistakable evidence that the Veteran's hypertension existed prior to service.  If such evidence is found, whether based on the available record or on medical principles regarding the etiology of such disabilities in cases such as the Veteran's, the examiner must then address whether there is clear and unmistakable evidence that the hypertension did not undergo a worsening beyond the normal progression of the disease during military service.  If the Veteran's hypertension is not found to have pre-existed service, the examiner should address whether the Veteran's current disability is at least as likely as not related to his time in service.  The bases for each opinion provided must be explained in detail with the complete rationale for the opinions expressed.

Right eye examination-The reviewer must clarify the diagnoses assigned at the Veteran's November 2009 ophthalmological examination and must opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any currently diagnosed right eye disorder is attributable to any period of active duty.  A detailed explanation for all conclusions reached by the reviewer must be provided, and any negative opinion must be clearly explained in light of the burn to the right eye the Veteran incurred in service in May 1959.  Citations to the record or relevant medical principles should be included as necessary to explain the opinion.

The examiners must set forth the complete rationale for all opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate.

(If either reviewer is no longer available, or if either reviewer determines that another examination is necessary to arrive at any requested opinion, an examination should be scheduled and the Veteran notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims.  See 38 C.F.R. � 3.655(b) (2010).  The examiner must provide the opinions requested above.  All examination results, along with the complete rationale for any opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, must be set forth.)

2.  The AOJ must ensure that the medical reports sought above comply with this remand and the questions presented in the examination request.  If any report is insufficient, it should be returned to the reviewer/examiner for necessary corrective action, as appropriate.

3.  After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority.  If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

Thereafter, the case should be returned to the Board for further appellate review, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2010).

______________________________________________
J. K. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: DENNIS F CHIAPPETTA

disposition: remanded

text:
Citation Nr: 1124000
Decision Date: 06/23/11    Archive Date: 06/29/11

DOCKET NO.  06-11 084A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Entitlement to an evaluation for cardioinhibitory and vasodepressor neurocardiogenic syncope (claimed as fainting spells) in excess of 20 percent for the period beginning February 7, 2005.

2.  Entitlement to an evaluation in excess of 20 percent for residuals, status post pacemaker implant (previously listed as cardioinhibitory and vasodepressor neurocardiogenic syncope (claimed as fainting spells) and coded 7011-8911) for the period beginning July 1, 2006.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Eckart, Counsel

INTRODUCTION

The veteran had active duty service with the United States Army from June 1980 to March 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 Decision Review Officer (DRO) Decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for cardioinhibitory and vasodepressor neurocardiogenic syncope (claimed as fainting spells) and assigned an evaluation of 20 percent.

The Veteran had a pacemaker installed in April 2006, and, by a May 2006 Rating Decision, the Veteran was given a temporary convalescent evaluation of 100 percent, effective April 14, 2006.  The Veteran was given a 20 percent evaluation for "residuals, status post pacemaker implant (previously listed as cardioinhibitory and vasodepressor neurocardiogenic syncope (claimed as fainting spells) and coded 7011-8911)", effective July 1, 2006.  Thus the issues are set forth to reflect his appeal for his cardiovascular and syncopal symptoms pre-and post-pacemaker insertion.

The Veteran testified before the undersigned Veteran's Law Judge at a hearing held in October 2008.  A transcript of the hearing is associated with the claims folder.

The Board remanded this matter for further development in February 2009.  As the actions requested in the prior remand were not complied with, another remanded  is necessary.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

In February 2009, the Board remanded this matter to afford the Veteran VA examinations to ascertain the severity of his cardiovascular symptoms and any associated syncopal symptoms.  The directives from the remand included ordering the examiner to obtain the Veteran's ejecton fraction and METS levels.  Additionally, by this remand, the Board directed that if the physician ordering such tests was not appropriate to evaluate the severity of any associated syncopal condition, a separate opinion should be obtained from an appropriate physician.

The requested development has not been completed.

Following this remand, the Veteran underwent VA examination on September 15, 2010 to assess the severity of his cardiovascular condition.  The examiner stated that an exercise tolerance test was not ordered due to the Veteran having a pacemaker, which contraindicated such testing.  The examiner was unable to determine the severity of the Veteran's syncopal episodes.  It was noted that an echocardiogram was ordered and pending, with plans to add the ejection fraction to the end of the report after completion of such testing.  A note at the end of the report indicated that the echocardiogram was scheduled for September 25, 2010.

A review of the record reveals that the results from the September 25, 210 echocardiogram are not in the claims folder.  There is no notation indicating that the Veteran failed to report for this test.  The most recent printout of VA records is dated September 23, 210.  It is necessary to associate the record from the September 25, 2010 echocardiogram results with the claims folder, and for the examiner to include an addendum to include the ejection fraction obtained.

As the cardiovascular examiner indicated he was unable to determine the severity of the Veteran's syncopal episodes, the RO should obtain a separate medical opinion from an appropriate specialist who is able to address this matter.

In the 2009 remand, the Board asked that the cardiovascular determine whether the Veteran continues to experience syncopal episodes, and, if so, assess their severity.  The Board also specified that if the examining physician was not the appropriate physician to evaluate any syncopal condition the Veteran may still have, the RO should obtain a separate examination with an appropriate physician.

A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Finally, the Board notes that the Veteran has submitted additional evidence without AOJ review.  Such evidence should be considered by the RO in readjudicating this claim.  The Veteran should also be afforded the opportunity to present additional evidence he may have.  See 38 C.F.R. �� 19.9, 20.1304(c) (2010).

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain all of the Veteran's current VAMC treatment records, including pacemaker surveillance reports, as well as any other outstanding treatment records indicated by the Veteran, and should associate them with the claims folder.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be noted in the claims file.

2.  The RO should associate a copy of the September 25, 2010 echocardiogram report that was to be conducted in conjunction with the September 2010 VA examination.  If the Veteran failed to report to this testing, notation of such failure must be associated with the claims folder.

3.  Thereafter, following the completion of the above, the claims folder should be associated with the examiner who conducted the September 2010 VA cardiovascular disorders examination.  If this examiner is no longer available, the claims folder should be forwarded to the appropriate specialist.  The examiner should review the additional evidence, and provide an addendum opinion which includes the ejection fraction to the end of the report to be obtained from the results of the September 25, 2010 echocardiogram (if one was conducted).  The examiner should again be asked to determine whether the Veteran experiences syncopal episodes, and, if so, their severity.

4.  If the cardiovascular examiner again states that he or she is unable to determine the severity of any syncopal episodes, the Veteran should be scheduled for an examination by the appropriate specialist to ascertain the nature and severity of such syncopal episodes in conjunction with the AMIE criteria for evaluating seizure disorders.  The examiner must review the Veteran's claims file, as well as this remand, in conjunction with the examination.  The examiner should perform a complete examination, thoroughly describe the severity of the Veteran's condition, and include the results of all tests conducted.

5.  The RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated.  The RO should then readjudicate the claims on appeal, based on all the evidence of record, and determine the appropriate evaluation level for each stage of the Veteran's disabilities.  If separate ratings are warranted, they should be assigned.  If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the requisite time period to respond.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may have adverse consequences on his claims. 38 C.F.R. � 3.655 (2010). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2010).

_________________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2010).


judge_norm: J A MARKEY

disposition: denied

condition: back

text:
Citation Nr: 1125000
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  07-20 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUE

Entitlement to an initial disability evaluation in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel

INTRODUCTION

The appellant served on active duty from May 1967 to April 1970 and from May 1979 to September 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which: granted entitlement to service connection for DDD of the lumbar spine, assigning a 20 percent disability evaluation; granted entitlement to service connection for Thygeson's keratitis, assigning a 10 percent disability evaluation; granted entitlement to service connection for left ear hearing loss (claimed as bilateral hearing loss), assigning a noncompensable disability evaluation; and denied entitlement to service connection for first degree atrial-ventricular block (claimed as a heart condition).  In October 2006, the appellant submitted a notice of disagreement pertaining to the assignment of 20 percent for his DDD of the lumbar spine and his noncompensable disability evaluation for left ear hearing loss, and perfected his appeal in June 2007.

In a subsequent rating decision dated in August 2007, service connection for hearing loss of the right ear was established and was combined with the left ear as bilateral hearing loss.  Evaluation of bilateral hearing loss, which was considered noncompensable, was increased to 10 percent disabling.  In correspondence dated in January 2008, the appellant specified that he only wished to appeal the assignment of 20 percent for his DDD of the lumbar spine.  Accordingly, the issue of entitlement to an increased disability rating for bilateral hearing loss is not before the Board.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. � 3.103 (2010).  The appellant has been accorded the opportunity to present evidence and argument in support of the claim.  In his June 2007 Substantive Appeal [VA Form 9] he declined the option of testifying at a personal hearing.

This claim came before the Board in October 2009.  At that time, the claim was remanded for additional evidentiary development, to include a new VA spine examination.  Such development having been completed, the claim is returned to the Board for adjudication.

The appellant submitted additional medical evidence following the issuance of the February 2011 supplemental statement of the case; however, he specifically waived agency of original jurisdiction consideration.  See 38 C.F.R. � 20.1304 (2010).

FINDINGS OF FACT

1.  The medical and other evidence of record indicates that throughout the appeal period, the appellant's service-connected DDD of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine limited to approximately 60 degrees or higher.

2.  There was no evidence of ankylosis of the entire thoracolumbar spine or incapacitating episodes.

3.  The evidence does not demonstrate that the appellant's service-connected DDD of the lumbar spine is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.

CONCLUSIONS OF LAW

1.  The criteria for an initial disability evaluation in excess of 20 percent for service-connected DDD of the lumbar spine are not met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.71a, Diagnostic Code 5243 (2010).

2.  Application of extraschedular provisions is not warranted in this case.  38 C.F.R. � 3.321(b) (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant seeks an increased disability rating for his service-connected DDD of the lumbar spine.

In the interest of clarity, the Board will first discuss certain preliminary matters.  The issue on appeal will then be analyzed and a decision rendered.

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims.  See 38 U.S.C.A. �� 5103, 5103A (West 2002).

The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issue has proceeded in accordance with the provisions of the law and regulations.

Standard of Review

In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. � 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. �� 3.102, 4.3 (2010).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Duty to Notify

The instant claim arises from a granted claim of service connection.  The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. � 5103(a) (West 2002).  Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases.  See Dunlop v. Nicholson, 21 Vet. App. 112 (2006).

Prior to and following the initial adjudication of the appellant's claim, letters dated in January 2006 (service connection claim notice) and January 2010 (increased rating claim notice) fully satisfied the duty to notify provisions, including notice of the degree of disability.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b)(1) (2010); Quartuccio, at 187.  The appellant was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.

Letters dated in November 2006 and January 2008 provided notice of the manner in which VA assigns initial ratings and effective dates.  Although these letters were not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided ample time to respond with additional argument and evidence, the claim was readjudicated and additional supplemental statements of the case were provided to the appellant in January 2011 and February 2011.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. � 20.1102 (2009) (harmless error).  In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his appellate claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

In short, the record indicates that the appellant received appropriate notice pursuant to the VCAA.

Duty to Assist

The Board also concludes VA's duty to assist has been satisfied.  The appellant's service treatment records, VA, and private medical records are in the file.  The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. � 3.327(a) (2010).

VA provided the appellant with appropriate VA examinations in August 2006 and July 2010.  There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined.  See 38 C.F.R. � 3.327(a) (2010).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The aforementioned VA examination reports are thorough and supported by the record.  The examinations in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the duty to assist provisions of the VCAA and that no further actions need be undertaken on the appellant's behalf.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. � 3.103 (2010).  The appellant has been accorded the opportunity to present evidence and argument in support of his claim.  He has declined the option of a personal hearing before the Board.

Accordingly, the Board will proceed to a decision.

II.  The Merits of the Claim

As noted above, the appellant contends that his lumbar spine DDD is more severe than currently contemplated by his 20 percent disability evaluation.

Governing Law and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.1 (2010).

Each disability must be considered from the point of view of the Veteran working or seeking work.  See 38 C.F.R. � 4.2 (2010).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7 (2010).

Where, as here, entitlement to service-connection has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings).  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Rating Musculoskeletal Disabilities

The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. � 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. � 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  See 38 C.F.R. � 4.10 (2010).  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  See 38 C.F.R. � 4.40 (2010).  Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  See 38 C.F.R. � 4.45 (2010).

	(CONTINUED ON NEXT PAGE)
Specific Schedular Criteria

Effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
See 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5242 (effective from September 26, 2003).

Assignment of Diagnostic Code

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

With respect to the current schedular criteria, all lumbar spine disabilities, with the exception of intervertebral disc syndrome, are rated using the same criteria, the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5242 (2010).

Intervertebral disc syndrome may be alternatively rated under the Formula for rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. � 4.71a, Diagnostic Code 5243 (2010).  This formula, however, requires incapacitating episodes, with bed rest as prescribed by a physician.  See Note (1).  In this case, there is no medical evidence anywhere of record of physician-prescribed bed rest.  Moreover, as has been noted above, there is of record no diagnosis of intervertebral disc syndrome, and virtually no evidence of neurological problems.

Thus, with respect to the current schedular criteria the appellant's service-connected lumbar spine disability will be rated using only the General Rating Formula for Diseases and Injuries of the Spine.

	(CONTINUED ON NEXT PAGE)
Analysis

During the pendency of the appeal, the appellant submitted private medical evidence and participated in two VA spine examinations.  The Board notes that in August 2005, following magnetic resonance imaging (MRI) of the lumbar spine, the appellant was diagnosed with (1) L5-S1 moderate right broad-based right paracentral protrusion with impingement and posterior displacement of the traversing right S1 nerve root with mild central canal stenosis and mild bilateral foraminal stenosis; (2) minimal disc bulge at L4-5 in conjunction with congenitally short pedicles, indicative of mild central canal stenosis; and (3) L3-4 right paracentral broad-based bulge with impression on anterior thecal sac and posterior displacement of the right traversing L4 nerve root; no apparent involvement of the exiting right L3 nerve root; moderate central canal stenosis; and foramina was present.  See Private Medical Record, Watauga Orthopaedics MRI Report, August 5, 2005.

In September 2005, the appellant was seen again at Watauga Orthopaedics.  The examining physician noted that he had no complaints of right S1 radicular pain.  The appellant was diagnosed with DDD of the lumbar spine with low back pain and right L5-S1 disc herniation without radiculopathy.  See Private Medical Record, Watauga Orthopaedics, September 30, 2005.  Shortly thereafter, he had a second MRI in November 2005.  The impression was significant spondylosis of the lower lumbar spine with borderline spinal stenosis.  See Private Medical Record, Johnson City Medical Center, November 11, 2005.

In August 2006, the appellant participated in a VA spine examination.  At that time, there was no evidence of neurologic abnormalities.  All urinary functions were normal and the appellant did not complain of leg or foot weakness or unsteadiness.  The appellant endorsed flare-ups of severe low back pain every two to three weeks, lasting approximately two to three days each.  He reported that the major functional impact was pain.  The appellant reported: incapacitation for a total of 90 days over the last 12 months; mild fatigue; moderate decreased motion; moderate stiffness; moderate weakness; and moderate spasm.  The appellant also noted that his low back pain radiated down his right leg into his right ankle.
Upon physical examination, there was no evidence of kyphosis, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis.  Further, there was no evidence of ankylosis.  There was some objective evidence of moderate muscle spasm.  Range of motion (ROM) findings were as follows:

Motion
Performed
Appellant's ROM
Findings
Normal ROM
(for VA purposes)
Flexion
0 to 60 degrees
0 to 90 degrees
Extension
0 to 10 degrees
0 to 30 degrees
Left Lateral Flexion
0 to 15 degrees
0 to 30 degrees
Right Lateral Flexion
0 to 15 degrees

Left Lateral Rotation
0 to 15 degrees
0 to 30 degrees
Right Lateral Rotation
0 to 15 degrees

The appellant noted no additional loss of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance.  The Board notes that the appellant had a positive Lasegue's sign on the right.  The appellant also noted that he experienced decreased mobility, problems lifting and carrying as well as increased employment absenteeism due to his disability.  See VA Spine Examination Report, August 9, 2006.

In December 2009, the appellant participated in physical therapy for his lumbar spine disability.  At that time, ROM findings were as follows:

Motion
Performed
Appellant's ROM
Findings
Normal ROM
(for VA purposes)
Flexion
0 to 20.4 degrees
0 to 90 degrees
Extension
0 to 3.9 degrees
0 to 30 degrees
Left Lateral Flexion
0 to 4.3 degrees
0 to 30 degrees
Right Lateral Flexion
0 to 10.2 degrees

See Private Medical Record, Professional Therapies of Roanoke, December 7, 2009.

In July 2010, the appellant participated in a second VA spine examination.  At that time, he complained of severe flare-ups of low back pain approximately five to six times per year, each lasting two to three weeks.  There was no evidence of neurologic abnormalities.  Specifically, all urinary functions were considered to be within normal limits.  There were no complaints of numbness or weakness, fatigue or spasm.  The appellant did endorse stiffness, weakness and constant, moderate pain.  Interestingly, the appellant did not complain of radiating pain or incapacitating episodes.  Upon physical examination, there was no evidence of abnormal spinal curvatures (to include gibbus, kyphosis, lordosis, flattening, or scoliosis).  Further, there was no evidence of ankylosis and no objective abnormalities (to include spasms, atrophy, guarding, tenderness or weakness).  ROM findings were as follows:

Motion
Performed
Appellant's ROM
Findings
Normal ROM
(for VA purposes)
Flexion
0 to 90 degrees
0 to 90 degrees
Extension
0 to 27 degrees
0 to 30 degrees
Left Lateral Flexion
0 to 25 degrees
0 to 30 degrees
Right Lateral Flexion
0 to 25 degrees

Left Lateral Rotation
0 to 25 degrees
0 to 30 degrees
Right Lateral Rotation
0 to 25 degrees

There was no additional limitation of motion on repetitive use due to pain, fatigue, weakness or lack of endurance.  Sensory examination findings for the lower extremities were normal and the appellant demonstrated normal muscle tone with no atrophy.  Lasegue's sign was negative.  The appellant reported that he had missed 10 to 12 days of work due to low back pain.  See VA Spine Examination Report, July 8, 2010.

Though the Board is aware of the December 2009 private physical therapy ROM finding, which indicated the appellant was only able to flex to approximately 20 degrees, this finding is considered an outlier, and not demonstrative of the appellant's flexion ability.  This is particularly the case, considering that the appellant had a completely normal flexion range of motion (to 90 degrees) upon ROM testing in July 2010.  Accordingly, the December 2009 physical therapy findings are not considered probative evidence of the appellant's current condition.

Based on the remaining evidence above, the appellant has not demonstrated that he currently suffers from ankylosis, or that his flexion is limited to 30 degrees or less.  Accordingly, the criteria for the assignment of a 40 percent schedular disability rating under the General Rating Formula for Diseases and Injuries of the Spine are not met.  As the criteria for a 40 percent disability rating are not met, the criteria for the still higher 50 or 100 percent disability ratings are also manifestly not shown.

DeLuca Considerations

In evaluating the appellant's increased rating claim, the Board must also address the provisions of 38 C.F.R. �� 4.40 and 4.45 (2010).  See DeLuca, supra.
The Board recognizes the appellant's complaints of pain as a result of his lumbar spine disability.  However, during the July 2010 VA examination, despite the manifestation of pain, the appellant was able to maintain full forward flexion to 90 degrees.  Further, there was no indication that the appellant displayed weakness, fatigue, incoordination, or lack of endurance of the lumbar spine.

The Board is unable to identify any clinical findings that would warrant an increased evaluation under 38 C.F.R. �� 4.40 and 4.45.  The current 20 percent rating adequately compensates the appellant for any functional impairment attributable to his lumbar spine disability.  See 38 C.F.R. �� 4.1, 4.10 (2010).

III.  Extraschedular Consideration

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. � 3.321(b)(1) (2010), Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

Neither the appellant nor his representative expressly raised the matter of entitlement to an extraschedular rating.  The appellant's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned rating.  See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant].  Moreover, the appellant and his representative have not identified any factors which may be considered to be exceptional or unusual with respect to the service-connected lumbar spine DDD and the Board has been similarly unsuccessful.

The record does not show that the appellant has required frequent hospitalizations for his service-connected spine disability.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.

In short, the evidence does not support the proposition that the appellant's lumbar spine DDD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. � 3.321 (b)(1) (2010).

IV.  Conclusion

In summary, for the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the appellant's claim of entitlement to an increased disability rating in excess of 20 percent from November 29, 2005, the date of the appellant's original claim.  Thus, staged ratings are not appropriate.  See Fenderson, supra.  The benefit sought on appeal is accordingly denied.

In adjudicating the current appeal for an increased initial disability rating, the Board has also not overlooked the Court's recent holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability).  Although the appellant has indicated that his lumbar spine disability has caused some increased absenteeism to his employment, he has not indicated that he is unemployed, nor has any physician indicated that he is unemployable solely due to his service-connected lumbar spine disability.  As such, the Board does not find the application of Rice in this case to be appropriate.

ORDER

Entitlement to an initial disability evaluation in excess of 20 percent for DDD of the lumbar spine is denied.

____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL E KILCOYNE

condition: tinnitus

text:
Citation Nr: 1126000
Decision Date: 07/11/11    Archive Date: 07/19/11

DOCKET NO.  08-26 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUE

Entitlement to service connection for bilateral tinnitus.

REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The Veteran served on active duty from to June 1966 to June 1968.

This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Muskogee, Oklahoma, (hereinafter RO).  The case was remanded by the Board for additional development of the claim for service connection for bilateral tinnitus in April 2010 and the case is now ready for appellate review of this issue.

FINDING OF FACT

There is no competent evidence linking tinnitus to the Veteran's presumed exposure to acoustic trauma in service.

CONCLUSION OF LAW

Bilateral tinnitus was not incurred in service.  38 U.S.C.A. �� 1110, 1154(b) 5103A, 5107 (West 2002); 38 C.F.R. � 3.303 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).  The duty to notify was fulfilled in the instant case by letter dated in September 2007 prior to initial adjudication that informed the appellant of the information and evidence necessary to prevail in his claim.

As for the duty to assist, the service treatment reports, VA clinical reports, and reports from the VA examination conducted in May 2010 requested by the Board in its April 2010 remand that includes an opinion as to whether the Veteran has tinnitus as result of service have been obtained.  As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled.

II.  Legal Criteria/Analysis

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. � 7104(a) (West 2002).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102 (2009).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service.  38 U.S.C.A. � 1110; 38 C.F.R. �� 3.303(a), 3.304.

Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. � 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  Id.  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).

The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) 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 evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons.  38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

When a wartime Veteran alleges he suffers disability due to an injury incurred in combat, 38 U.S.C.A. � 1154(b) must be considered, permitting the Veteran's undocumented assertions regarding combat-related injuries to be accepted as true.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996).  The analysis required by 38 U.S.C.A. � 1154(b), however, applies only as to whether an injury or disease was incurred or aggravated at that time, i.e., in service.  It does not apply to the questions of whether there is a current disability or a nexus connecting any current disability to service.  See Collette, Gregory, supra. The provisions of 38 C.F.R. � 1154(b) do not obviate the requirement that a Veteran submit medical evidence of a causal relationship between his current condition and his military service.  Wade v. West, 11 Vet. App. 302 (1999).

The service treatment reports, to include the reports from the June 1968 separation examination and medical history collected at that time, do not reflect any evidence of tinnitus.  These facts notwithstanding, it is the Veteran's assertion that acoustic trauma associated with exposure to gun noise during service resulted in tinnitus.  The Veteran's DD Form 214 reflects service in the Republic of Vietnam during the Vietnam War, and the U. S. Army and Joint Services (JSRRC) has verified that the Veteran's duty therein included exposure to firefights.  As such, and given the provisions with regard to injuries asserted to have been incurred in combat set forth above, the Board finds the Veteran's report of exposure to acoustic trauma as a result of gunfire in service to be credible.  See 38 U.S.C.A. � 1154(b).

As indicated, exposure to acoustic trauma during service is presumed given the provisions of 38 U.S.C.A. � 1154(b).  Thus, the matter for consideration is whether the evidence indicates that any current tinnitus is etiologically related to the presumed in-service acoustic trauma.  See Wade, supra.  The VA examination conducted in May 2010 to assist in this determination noted the history of in-service weapons fire.  However, post-service exposure to acoustic trauma coincident with employment in the proximity of power tools and recreational noise exposure from shooting and the use of a chain saw were also described.  The examination report documents review of the claims file, and based on this review and an examination of the Veteran, the examiner concluded that it was less likely as not that the Veteran's tinnitus was the result of service.  In support of this conclusion, the audiologist noted the lack of any evidence of tinnitus in the service medical records.

Review of the other clinical evidence of record, to include VA outpatient treatment reports dated in 2007 and 2008, does not reflect any other clinical evidence linking tinnitus to service.  While the Veteran is competent to describe symptoms of ear ringing since service, also weighing against the claim is the fact that there is no evidence of complaints of tinnitus until the Veteran's application for VA benefits filed in August 2007, 39 years after separation from service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

In short, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral tinnitus, which was not demonstrated in service, was first complained of many years after service, and has not been linked by the most probative evidence of record to service.  Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus, the doctrine is not for application.  Gilbert, supra.

ORDER

Entitlement to service connection for bilateral tinnitus is denied.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: VITO A CLEMENTI

disposition: granted

text:
Citation Nr: 1127000
Decision Date: 07/20/11    Archive Date: 07/29/11

DOCKET NO.  08-08 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUE

Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. W. Loeb

INTRODUCTION

The Veteran served on active duty from August 1969 to March 1972; his military occupational specialty was aircraft mechanic and repairman.

This case comes before the Board of Veterans' Appeals (Board) Board on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO).

The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in March 2011, and a transcript of the hearing is of record.  The Veteran submitted a statement at his hearing withdrawing his claim for service connection for hearing loss but continuing his claim for service connection for tinnitus.  A March 2008 rating decision denied entitlement to service connection for tinnitus and, after a notice of disagreement was received, a September 2008 Statement of the Case continued to deny this issue.  Although the March 2011 travel board hearing was subsequent to the period for a timely appeal of this issue, the Board will honor the Veteran's expressed intent and will proceed with adjudication of the appeal for service connection for tinnitus.  See Percy v. Shinseki, 23 Vet.App. 37 (2009).

FINDING OF FACT

The evidence is in equipoise as to whether the Veteran has recurrent tinnitus due to his military service.

CONCLUSION OF LAW

The criteria to establish service connection for tinnitus are approximated.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A.
� 7104(d); see also 38 C.F.R. � 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veteran seeks service connection for tinnitus.  He has contended that his exposure to acoustic trauma in service resulted in his current tinnitus.

Having carefully considered the Veteran's contentions on her low back in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim for service connection for tinnitus will be granted on this basis.  38 U.S.C.A � 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. � 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).
In order 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 evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. � 5107 (West 2002).  A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. � 3.102.  When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

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 3-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 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the 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);

(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.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. � 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Veteran's DD Form 214 reveals that the Veteran served in Vietnam and that his duties in service included helicopter repair.  His service treatment records do not reveal any complaints of ringing in the ears, and the Veteran's hearing was within the VA definition of normal.

Private audiograms dated in November 1974 and June 1980 do not reveal any complaints of tinnitus; the Veteran's hearing on these evaluations was within the VA definition of normal.  According to the 1974 report, the Veteran's occupational history included noise exposure with ear protection.  The Veteran reported
non-occupational noise exposure involving firearms, tractors, chainsaws, motorbike, and aircraft.

The Veteran complained on VA evaluation in February 2008, which included review of the claims file, of having had tinnitus for years and of a history of military noise exposure.  Occupational noise exposure after service included working for a steel corporation for seven years with the use of a hearing protection device.  Audiological testing showed bilateral sensorineural hearing loss.  The examiner noted that the service medical records were negative for complaints, treatment, or diagnosis of tinnitus and that the Veteran was exposed to acoustic trauma after service.  Consequently, the examiner concluded, based on a review of the claims file and examination of the Veteran, that it was less likely as not that the Veteran's tinnitus was related to service.

VA treatment reports for June 2008 reveal that the Veteran was provided hearing aids. The Veteran's complaints on VA hearing evaluation in October 2009 included tinnitus since Vietnam.  Service and occupational noise exposure was reported.  Bilateral sensorineural hearing loss was diagnosed, which was not considered due to service.

The Veteran testified at his travel board hearing in March 2011 that he was exposed to acoustic trauma in service without hearing protection from aircraft engines, enemy rocket attacks, and machine guns; that he had intermittent tinnitus at service discharge but was not asked about it; and that he was provided hearing protection when exposed to acoustic trauma while working after service discharge.

Also on file is information submitted by the Veteran on military noise exposure and the implications for hearing loss and tinnitus.

There is evidence both for and against the claim for service connection for tinnitus.  Although the VA examiner in February 2008 did not find that the Veteran's tinnitus is due to service, the evidence shows that the Veteran was exposed to acoustic trauma in service as a helicopter repairman and that he has contended, including at his March 2011 personal hearing, that he has had tinnitus, intermittent in service, since service.

As to whether the evidence is sufficient to demonstrate that the Veteran experienced recurrent tinnitus during active service and chronically thereafter, the Court of Appeals for Veterans Claims has specifically held that a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service.  See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).  There is no evidence of record indicating that the Veteran's subjective report of tinnitus since service is not true.

Consequently, the evidence is in relative equipoise.  By extending the benefit of the doubt to the Veteran, as required by law, the Board finds that service connection for tinnitus is warranted.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

ORDER

Service connection for tinnitus is granted.

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs