Entitlement to service connection for tinnitus and degenerative arthritis of the cervical spine is granted

Published On - August 25, 2022

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Entitlement to service connection for tinnitus and degenerative arthritis of the cervical spine is granted

Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels. 

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Citation Nr: 19172172
Decision Date: 09/17/19	Archive Date: 09/17/19

DOCKET NO. 15-36 353
DATE: September 17, 2019

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for degenerative arthritis of the cervical spine is granted.

REMANDED

Entitlement to a rating in excess of 20 percent prior to and in excess of 40 percent thereafter for lumbar spine strain with spondylosis, degenerative arthritis and intervertebral disc syndrome is remanded.

Entitlement to a rating in excess of 20 percent for left leg sciatica is remanded.

Entitlement to service connection for left ankle strain is remanded.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

Entitlement to service connection for hearing loss is remanded.

Entitlement to service connection for a bilateral foot condition is remanded.

Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 30, 2019 is remanded.

FINDINGS OF FACT

1. Affording the Veteran, the benefit of the doubt, his tinnitus has been shown to have been incurred during active service with symptoms ever since separation.

2. The competent and probative evidence is at least in equipoise as to whether degenerative arthritis of the cervical spine had its onset in or is otherwise related to the Veteran’s period of active service.

CONCLUSIONS OF LAW

1. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).

2. The criteria for service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from January 1981 to August 1984.

In February 2019, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record.

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires evidence showing: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In this case, tinnitus and arthritis are recognized as chronic diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease 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. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus or arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

1. Entitlement to service connection for tinnitus

The Veteran asserts that he started having ringing in his ears during service and has experienced the ringing in his ears since service. See Board hearing trans. p. 4. 

In the May 2014 VA examination report, the VA audiologist included a diagnosis of tinnitus.  Thus, a current disability is shown. 

The record reflects that the Veteran was a wheeled vehicle mechanic in service. Thus, noise exposure has been conceded. Service treatment records are absent any complaints or treatment related to hearing problems, to include tinnitus. Indeed, the July 1984 separation examination did not document any hearing problems. 

Post-service, the Veteran filed a claim for service connection for tinnitus in 2014, almost 30 years after separation. The earliest medical evidence of record since discharge reflecting a diagnosis of tinnitus is in a May 2014 VA examination report. During the May 2014 VA examination, the Veteran reported that he was exposed to acoustic trauma in service and that his tinnitus began 15 years or more prior to the examination. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. He noted that the Veteran entered military service with a moderate hearing loss at 6000 Hz in the left ear and currently had mild to moderately severe sensorineural hearing loss in the left ea between 40000 and 8000 Hz.  The examiner remarked that there was no noted report or documentation of tinnitus in the service treatment records and that the current tinnitus beginning 15 or more years prior would indicate onset significantly post active duty time. 

While the May 2014 VA examiner opined that the Veteran’s tinnitus was less likely than not related to service because service records are silent for hearing loss and tinnitus complaints, the opinion regarding the etiology of the Veteran’s tinnitus is not probative as to whether the Veteran’s tinnitus is related to service as it stands in contrast with statute and regulations indicating that service connection for hearing loss may be granted even when a hearing loss is not shown in service or demonstrated upon discharge from service. See 38 U.S.C. § 1113; 38 C.F.R. § 3.303; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, although service treatment records show that the Veteran’s hearing tested within normal limits aside from the hearing loss noted at 6000 Hz, his October 1981 annual examination audiometric data reflects puretone threshold shifts of at least 15 decibels (dB) in the right ear at 3000 Hz. Notably, guidelines of the National Institute for Occupational Safety and Health indicate that a significant threshold shift is 15 decibels or more, which is shown during the Veteran’s military career. See Hensley, supra.

When reviewing the medical opinion in this case, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran’s tinnitus is related to his service. The Board finds that the Veteran’s assertions regarding the onset of his tinnitus and symptoms since service are credible. Service personnel records show that his military occupational specialty (MOS) was wheeled vehicle mechanic. He has stated that he experienced tinnitus since service and experiences it today, and there is no persuasive evidence of record indicating that the Veteran’s statements are not credible. Here, the Veteran has provided a date of onset of tinnitus during service, and the Veteran is competent to state that he has experienced tinnitus since service to the present. No probative opinion to the contrary is of record.

Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus are met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to service connection for degenerative arthritis of the cervical spine

The Veteran contends that his cervical spine degenerative arthritis is a result of duties in service including jumping out of airplanes. He stated that he had whiplash when the static line opened the parachute.  See May 2016 VA Form 9.

The record contains competent diagnoses of degenerative arthritis of the cervical spine. See May 2015 VA examination report. Thus, the Board finds competent evidence of a current cervical spine disorder. 

Service records reflect that the Veteran received his paratrooper badge; however, there is no evidence that the Veteran complained of having any cervical spine pain or injury during service.

The Veteran was afforded a VA examination in May 2014 and noted to have degenerative arthritis of the cervical spine. According ot he May 2014 VA examiner, it was opined that the Veteran’s cervical spine could very well be degenerating due to his military history as a paratrooper, however, evidence to support such was not found in the government facility or service treatment records. 

According to an April 2016 addendum opinion, another VA examiner opined that the Veteran’s cervical spine condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  His rationale noted that service record does not document objective findings consistent with a high energy injury to the soft tissue or osseous structures of Veteran’s cervical spine, such as fracture, disc derangement, spinal complex/ligament tear or dislocation. In the absence of such findings a post traumatic or chronic inflammatory process is less likely than not. Moreover, he noted, the service records do not document repetitive microtrauma which would be required to initiate and sustains a posttraumatic or chronic inflammatory process. Furthermore, there exists a substantial treatment gap from onset of symptoms to contemporary evaluation which belies Veteran’s assertion of a causative relationship between his current pathology and active duty. Finally, while repetitive parachute landings might be a risk factor for post traumatic disease in weight bearing lower extremity joints, the examiner stated that the literature nor commonly accepted mechanism for repetitive joint overload, support repetitive parachuting as a risk factor for cervical disease.

The Veteran subsequently provided a January 2017 private opinion from Craig Bash, M.D. The private report notes that the Veteran’s current cervical spine problems are due to his head trauma accident that the Veteran had during military service. Although there is no documented head trauma in service, Dr. Bash contends that Veteran has a serious head injury from parachute landing and aircraft exit whiplash force to the neck.  Dr. Bash also opined that the cumulative effect of his military service likely injured his cervical spine and that the evidence reflects chronicity and continuity of symptomatology.  The examiner also noted that injuries to the spine lead to advanced degenerative changes late in life due to chronic ligament laxity and spine instability.

In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s cervical spine arthritis was incurred in service with post-service continuity of the same symptomatology. The Board acknowledges the April 2016 VA examiner’s opinion that it is less likely than not that the Veteran’s cervical spine disorder is related to service. The service treatment records, the Veteran’s lay statements, and the VA and private examination reports contain discrepancies and inconsistencies regarding whether the Veteran’s incurred an in-service injury of the cervical spine to include whiplash. However, as the disability in question, arthritis, is a chronic disease under 38 C.F.R. § 3.309 (a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In light of the Veteran’s contentions of neck pain since service and the May 2014 VA examiner and Dr. Bash noting the possibility of cervical spine degenerative arthritis being related to parachuting, the Board finds that service connection is warranted for cervical spine degenerative arthritis. See 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a).

REASONS FOR REMAND

1. Entitlement to a rating in excess of 20 percent prior to and in excess of 40 percent thereafter for lumbar spine strain with spondylosis, degenerative arthritis and intervertebral disc syndrome is remanded.

2. Entitlement to a rating in excess of 20 percent for left leg sciatica is remanded.

Regarding the Veteran’s increased rating claims on appeal, a statement of the case (SOC) was issued in August 2015 and a supplemental SOC (SSOC) was issued in February 2016. Subsequent to their certification to the Board, the Veteran was afforded several VA examinations, most recently in July 2019. The Board emphasizes that the evidence (specifically VA examination reports) was generated by VA and not submitted by the Veteran. Accordingly, the AOJ must be given the opportunity to review this evidence before the Board can render a decision. See 38 C.F.R. § 20.1304(c). Although a July 2019 rating decision, granted an increased rating to 40 percent effective April 30, 2019 for the lumbar spine strain spondylosis, degenerative arthritis, and intervertebral disc syndrome, to date, it does not appear that the RO has issued SSOC as to the Veteran’s increased rating claims for his lumbar spine disability and left leg sciatica. Under these circumstances, a remand is warranted for initial AOJ review of the July 2019 VA examination report and, if the claims remain denied, issuance of an SSOC to the Veteran and his representative if necessary.

3. Entitlement to service connection for left ankle strain is remanded.

The Veteran contends that he has a left ankle strain as a result of parachuting during service.  He was afforded a VA examination in July 2014 and noted to have incurred a mild acute ankle sprain in October 1981. However, the examiner noted a current diagnosis of an ankle condition.  The examiner opined that the Veteran’s ankle condition is not caused by or a result of service noting that the October 1981 mild sprain was treated and resolved and that the current exam showed changes solely due to the natural progression from aging, but no evidence or residual of acute sprain in 1981. The Board notes that the July 2014 VA examination report shows x-ray consistent with bipartite medial hallux sesamoid and small plantar and achilles calcaneal enthesophytes.  In addition, a March 2016 VA treatment report notes that the Veteran has pes planus and posterior tibial tendon dysfunction and wears ankle sleeves bilaterally.  In light of the above, a new VA examination is warranted to clarify any current diagnosis and etiology of the Veteran’s left ankle.

4. Entitlement to service connection for an acquired psychiatric disorder is remanded.

The Veteran contends that he has an acquired psychiatric disorder related to his active service. The Veteran was afforded a VA Mental Disorder examination in June 2014.  At that time, the examiner noted that the Veteran did not have a mental disorder and stated that because no diagnosis was made, no opinion could be offered.  Nonetheless, the examiner noted that the Veteran suffered from chronic sleep impairment and scored in the range for mild anxiety on the Beck Anxiety Inventory.  Subsequent VA treatment records dated in April 2019 reflect a diagnosis of major depressive disorder, mild to moderate. Further, in a January 2017 statement, the Veteran indicated that his service-connected lumbar degenerative disc disease has contributed to his mental health issues. In light of the above, the Board finds that another VA examination is warranted to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder.

5. Entitlement to service connection for hearing loss is remanded.

The Veteran seeks service connection for bilateral hearing loss. Specifically, he asserts that he incurred hearing loss as a result of his duties as a wheeled mechanic. The RO conceded in-service exposure to excessive noise and/or acoustic trauma. See April 2014 VA 21-2507a, Request for Physical Examination.

According to the May 2014 VA examination report, the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes. However, during the February 2019 Board hearing, the Veteran reported additional hearing difficulties, indicating that his hearing loss may have worsened. As such, a remand for a contemporaneous VA examination is necessary to adjudicate the appeal.

6. Entitlement to service connection for a bilateral foot condition is remanded.

The Veteran contends that he also has a bilateral foot condition as a result of parachuting during service. In the July 2014 VA examination, the Veteran was noted to have diabetic neuropathy involving his feet as well as plantar fasciitis. The examiner opined that the Veteran’s diabetic neuropathy is not caused by or a result of service and had onset in July 2007.  It was noted that the Veteran was treated for plantar fasciitis with peroneal tendonitis in September 1982, but the July 1984 separation examination was silent for foot issues and no chronic foot condition is established based upon available records on only a single acute treatment in 1982.

In an April 2019 private treatment report, the Veteran was noted to have plantar fasciitis. That examiner noted that the Veteran has had a chronic and recurring problem involving heel and arch pain and that the Veteran’s medical conditions are more likely than not a result of his military service.  However, the examiner did not specify which current medical conditions he was referring nor provide a rationale other than noting that the Veteran had complaints of heel and arch pain dating back to 1982. During the February2019 Board hearing, the Veteran’s representative noted that the Veteran had plantar fasciitis noted in service and contended that such did not go away. Thus, an addendum opinion is warranted to determine whether the Veteran’s currently diagnosed plantar fasciitis is related to his active service, to include the plantar fasciitis noted in service.

7. Entitlement to service connection for GERD is remanded.

According to the July 2014 VA examination, GERD was diagnosed. The examiner reported that the service treatment records show treatment for non-specific upset stomach as cramps in March 1982 and flu syndrome with stomach cramps in November 1982 but no ongoing issues. He further noted that the Veteran’s current GERD was shown with onset of 3 months prior in December 2013 that shows no relationship to service. At the February 2019 Board hearing, the Veteran testified that he had experienced heartburn constantly since service. As VA examiner did not consider the Veteran’s reports of continuing symptoms since service, the Board finds that another examination is necessary. 

8. Entitlement to a TDIU due to service-connected disabilities prior to April 30, 2019 is remanded.

In a July 2019 rating decision, the RO granted TDIU, effective April 30, 2019. However, the issue of TDIU is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, in a December 2016 private opinion, it was noted that the Veteran disabilities and total VA medical disabilities affect his ability to be gainfully employed. As the award of TDIU did not encompass the entire period of the appeal, the grant constituted less than the maximum benefit allowed by law and regulation, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993).

A favorable Social Security Administration (SSA) granting the Veteran disability benefits is part of the record. However, the medical records associated with the decision are not in the claims file. VA must request potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The SSA determined that the Veteran could not work due to his back disability as well as osteoarthrosis and allied disorders. As these medical records are likely relevant to the Veteran’s claims on appeal, including the claim for a TDIU, they should be obtained on remand.

The matters are REMANDED for the following actions:

1. Contact the SSA and request a copy of the Veteran’s complete SSA disability benefits file, including all associated medical records upon which the determination was based, and associate all records received with the claims file.

2. Obtain all outstanding VA medical records dated from June 2019 to the present.

3. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and etiology of his bilateral hearing loss. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should state whether it is at least as likely as not that the Veteran’s bilateral hearing loss had an onset in service or is related to his conceded noise exposure during service.

In addressing this question, the examiner should accept as true that the Veteran sustained acoustic trauma during service.

Alternatively, the examiner should state whether it is at least as likely as not that the Veteran’s hearing loss is due to, or aggravated by, his service-connected tinnitus.

The examiner must include rationale with all opinions

4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot and left ankle disability. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran identify any current bilateral foot and left ankle disabilities. For all disabilities noted, the examiner must opine on the following:

(a.) whether it is at least as likely as not related to an in-service injury, event, or disease, including multiple complaints and treatment for foot and ankle pain noted in service to include the 1981 strain as well as plantar fasciitis with peroneal tendonitis noted in September 1982. 

(b.) whether it at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

(c.) whether it is at least as likely as not proximately due to a service-connected disability to include the lumbar spine and left leg disabilities. 

(d.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability.

(e.) If no formal diagnosis can be made, consideration should be given to the impact, or lack thereof, from pain, and determine whether any foot and/or ankle disability results in functional impairment of earning capacity caused by pain.

In providing the above, the examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner(s) should provide a fully reasoned explanation.

The examiner is also asked to take into consideration the noted disabilities including plantar fasciitis, diabetic nephropathy, pes planus and posterior tibial tendon dysfunction.

The examiner must include rationale with all opinion.

5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:

Is it at least as likely as not that the Veteran’s acquired psychiatric disorder is causally or etiologically related to his military service, to include any injury or symptomatology therein including nervousness noted in the July 1984 separation examination? 

In the alternative, the examiner should opine as to whether it at least as likely as not that the Veteran’s acquired psychiatric disorder was caused by or was chronically worsened (aggravated beyond its natural progression) by any of the Veteran’s service-connected disabilities such as the Veteran’s cervical spine disability, back disability, left leg disabilities, and tinnitus, to include medication used for those disabilities? 

In providing the above, the examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner(s) should provide a fully reasoned explanation. 

The examiner is asked to take into consideration the June 2014 VA Mental Disorders examination findings including mild anxiety as well as the April 2019 diagnosis of major depressive disorder.

The examiner must include rationale with all opinions.

6. Arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of the diagnosed GERD. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following:

What is the most likely etiology for the Veteran’s GERD? Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) his active duty service?

The examiner is asked to specifically include comment on the evidence of record including the service treatment records; the Veteran’s reports of experiencing symptoms including heartburn since service.

The examiner must include rationale with all opinions.

7. When the above action is completed, readjudicate the increased rating claims on appeal as well as the claim for TDIU prior to April 30, 2019.

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Williams, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.