Service connection for tinnitus is granted.
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Citation Nr: 19141635 Decision Date: 05/30/19 Archive Date: 05/30/19 DOCKET NO. 17-09 694 DATE: May 30, 2019 ORDER Service connection for tinnitus is granted. Service connection for plantar fasciitis is granted. Service connection for asthma is granted. An effective date of August 26, 2013, for the grant of service connection for a cervical spine disability is granted. An effective date of August 26, 2013, for the grant of service connection for right upper extremity radiculopathy is granted. An effective date of August 26, 2013, for the grant of service connection for left upper extremity radiculopathy is granted. REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to the cervical spine disability and respiratory disorder, is remanded. Service connection for a bilateral foot disorder other than plantar fasciitis is remanded. An initial disability rating higher than 10 percent for a cervical spine disability is remanded. An initial disability rating higher than 20 percent for right upper extremity radiculopathy is remanded. An initial disability rating higher than 40 percent for left upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to service. 2. Resolving reasonable doubt in the Veteran’s favor, his plantar fasciitis is at least as likely as not related to service. 3. Resolving reasonable doubt in the Veteran’s favor, his asthma is at least as likely as not related to service. 4. Resolving all reasonable doubt in the Veteran’s favor, his initial claims for service connection for a cervical spine disability and right and left upper extremity radiculopathy were received by VA on August 26, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for plantar fasciitis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for an effective date of August 26, 2013, for the grant of service connection for a cervical spine disability have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.156, 3.400. 5. The criteria for an effective date of August 26, 2013, for the grant of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.156, 3.400. 6. The criteria for an effective date of August 26, 2013, for the grant of service connection for left upper extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to March 1988 and October 1992 to December 1992. The Board notes that in December 2018 the Veteran’s attorney filed a FOIA request for records associated with the claims file since his last FOIA request (which had been fulfilled by VA in September 2018). As all the claims decided herein are all grants and remands, the Veteran is not prejudiced by this request not having been fulfilled prior to the issuance of this decision. Specifically, the Board notes that it is granting claims for service connection, which would not change regarding new evidence. Also, for the earlier effective date claims, newly received evidence would not be relevant to establishing such dates. Other than evidence submitted by the Veteran and his attorney, the only evidence associated with the claims file since the last FOIA response in September 2018 are VA medical records that are duplicative of evidence previously provided and June 2018 VA scheduling contact notes, memorializing attempted telephone contact by the VA Medical Center and indicating that contact by letter was subsequently made. Copies of the new VA examinations associated since September 2018 have been provided to the Veteran in March 2019, following the Veteran’s request for those specific records in January 2019. The increased rating claims must be remanded due to the nature of the claims, as explained in the remand portion of this decision. Therefore, in order to prevent a needless delay in awarding the Veteran related benefits, the Board will go forward with its adjudication. Service Connection 1. Service connection for tinnitus. The Veteran contends that his tinnitus developed due to in-service noise exposure, including, as reported in a July 2013 lay statement, from: sleeping next to generators; proximity to helicopters, jets, and aircrafts without ear protection; and weapons noise exposure. He has also provided multiple lay statements as to observations of noise exposure and tinnitus symptoms. The Board finds that the Veteran has a current diagnosis of tinnitus and that it is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A January 1999 occupational health medical history documented a history of tinnitus. Per April 2015 VA examination findings, the Veteran has a current diagnosis of tinnitus. The examiner did not provide an etiology opinion. The Veteran has also submitted private medical opinions, including from February 2015 by Dr. C. Bash finding that tinnitus is due to in-service noise exposure. However, given the Veteran’s credible reports of in-service noise exposure, in conjunction with credible reports of chronicity, and giving the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. 2. Service connection for plantar fasciitis. In August 2015, the Veteran claimed service connection for a bilateral foot condition, including plantar fasciitis. The Veteran contends that he developed plantar fasciitis during active duty, due to the physical demanding activities with the Marines. The Veteran has also submitted multiple lay statements as to observations of his foot pain and difficulties walking. A November 1986 service treatment record documents treatment for plantar fasciitis. In a May 2015 private medical opinion, Dr. C. Bash found that the Veteran’s plantar fasciitis was due to service. In an August 2015 private medical opinion, podiatrist J. Digilio found that the Veteran’s was first diagnosed with plantar fasciitis in service and that a chronic condition has continued since that time. In an April 2018 private medical opinion, Dr. J. Ellis found that the Veteran’s marching in combat boots while carrying heavy equipment caused abnormal stresses and strains on the muscles, tendons and joints in the feet arches that caused plantar fasciitis until the present. The only negative opinion of record is the February 2016 VA examination, which the Board finds was inadequate. The VA examiner in part based his opinion on the incorrect finding that there was no evidence of plantar fasciitis on service treatment records. Given the positive evidence of record, the Board finds that service connection for plantar fasciitis is granted. 3. Service connection for asthma. The Veteran contends that he developed asthma due to service. He has provided multiple lay statements and theories of entitlement, including chemical exposure (including from his duties as a fireman), asbestos exposure, and jet exhaust exposure. While with the Air National Guard, he served as a fire protection specialist, and included chemical exposure in Southwest Asia. The Veteran’s service treatment records include a June 1986 record, the provider found an obstructive pattern in PFTs for asbestos screening. Private medical records by Dr. A. Chanales, a pulmonary specialist, include treatment for asthma, such as a December 2001 finding of some degree of uncontrolled asthma. In a March 2009 record, Dr. Chanales noted that the Veteran had been in Iraq for several years working in fire control as a contractor and was exposed to fumes from burning oil and other materials; his asthma would act up at those times. The private medical records make clear that Dr. Chanales has treated the Veteran for several years for his asthma. In March 2016, Dr. A. Chanales found that his asthma/reactive airway disease was caused by exposure to a variety of toxins during military duty. The Veteran has also submitted a February 2015 positive opinion from Dr. C. Bash. The Board notes that in December 2012, the Veteran underwent a VA examination and received a diagnosis of chronic obstructive pulmonary disease (COPD), but did not include an etiology opinion. The Board finds such examination was inadequate as the COPD diagnosis was not indicated elsewhere, including by the Veteran’s treating pulmonary specialist Dr. Chanales. That physician did not find asthma though that diagnosis was evident of record. Given the credible reports of and records of chemical exposure, the in-service finding of obstructive pattern, the positive medical opinion of Dr. Chanales, and giving the Veteran the benefit of the doubt, the Board finds that service connection for asthma is warranted. Effective Date 4. Entitlement to an earlier effective date for the grants of service connection for a cervical spine disability and right and left upper extremity radiculopathy. The Veteran’s attorney asserts, in a February 2016 correspondence, that an effective date of August 24, 2012 “the date of the Veteran’s original claim for service connection disability” is warranted. The attorney further asserted that “[t]he copy of file we received, does not show VA Form 21-526 to be of record. However, VA Form 21-4138 dated 07/09/2013, shows a notation ‘Whole Back & Neck’ and includes reference to tingling, numbness and paresthesias in the upper extremities.” Additionally, the Veteran “submitted statements, dated April 14, 2013, and May 23, 2013…reference a neck injury and bilateral upper extremity pain and numbness.” Also, two VA Forms 21-4138, dated July 9, 2013, “reference to the upper extremity neurological involvement and reference to his motor vehicle accident.” In general, for disability compensation for service connection, unless the claim is received within one year of the Veteran’s discharge from service (in which case an effective date of the day after separation could be established), the effective date is the “date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(b)(2)(i). In a January 2016 rating decision, the RO granted service connection for cervical spine fracture to include arthritis due to motor vehicle accident and radiculopathy or the right upper extremity and left upper extremity – each disability was made effective July 27, 2015, the date of claim. As to the Veteran’s argument that an August 24, 2012, effective date is warranted, the Board finds such a claim is not supported by the record. The Veteran’s claim for service connection received on August 24, 2012 is associated with the claims file. At that time, the Veteran claimed service connection for asthma/bronchitis, back, asbestos, chronic illness tonsils, ankles, hypertension, and sciatic nerve. Furthermore, in his continuation of his application, he specified by back he meant the thoracolumbar spine. No mention of the neck/cervical spine or upper extremities was mad at that time. As no claim for service connection for the neck/cervical spine or upper extremity neurological problems were made or even mentioned at that time, an effective date of August 24, 2012 is not warranted. The Board does find, however, that the Veteran submitted a VA Form 21-4138 that he dated as July 9, 2013, and that he did identify his issue as “Whole Back & Neck” at that time, and that it also references to tingling and numbness in the upper extremities. Additionally, other lay statements from individuals who knew him also dated in 2013 also reference neck and bilateral upper extremity pain and numbness. Those 2013 lay statements were submitted by the Veteran in August 2013. Per his statement dated August 21, 2013, he was submitting an update to his application in response to an August 2012 letter from VA and was providing in-depth VA Forms 21-4138 statements and reference material for a total of 6 binders. That letter was date stamped as received September 27, 2013. Generally, there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The Veteran, however, has previously argued that his claim was not properly handled by VA and that it erroneously date stamped the receipt of his claim as on September 27, 2013. In support of his contention, the Veteran has submitted a copy of his USPS.COM tracking confirmation for his documents delivery, which does indicate that his mailed binders were delivered on August 26, 2013. He has also submitted copies of his receipts from Parcel Plus, dated August 23, 2013, indicating his payment for the shipping of documents to VA for approximately 40 pounds in total. Given such evidence, the Board finds that the presumption of regularity in the handling of the Veteran’s claims has been rebutted. The Board notes that this decision is specific to the unique facts of this Veteran’s case. Based on the evidence of record, and giving the Veteran the benefit of the doubt, the Veteran report to VA that his claimed disabilities included the neck/cervical spine and upper extremity pain and numbness symptoms was an informal claim for those disabilities. That informal claim was received on August 26, 2013 and thus an effective date of August 26, 2013 is warranted for the grant of service connection for a cervical spine disability and right and left upper extremity radiculopathies. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea (OSA) is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA because no VA examiner has opined whether such disorder developed due to serice or secondary to the now service-connected asthma or the cervical spine disability (as claimed by the Veteran). 2. Service connection for a bilateral foot disorder other than plantar fasciitis. The February 2016 VA examiner (which the Board found was inadequate above) found that the Veteran had pes planus diagnosed in April 2015. However, the April 2015 private medical record diagnoses by podiatrist J. Digilio did not include a diagnosis of pes planus. Similarly, in August 2015, Dr. Digilio specifically did not find pes planus, but indicated some symptoms of pes cavus. In April 2018, Dr. Ellis also did not find pes planus. In May 2015, Dr. C. Bash found flat feet due to service. Thus, the record is unclear as to whether the Veteran has a foot disorder other than plantar fasciitis. A VA examination is necessary to clarify whether the Veteran has a foot disorder other than plantar fasciitis due to service. 3. The increased rating claims for (1) an initial disability rating higher than 10 percent for a cervical spine disability, (2) an initial disability rating higher than 20 percent for right upper extremity radiculopathy, and (3) an initial disability rating higher than 40 percent for left upper extremity radiculopathy are remanded. As the Board has awarded earlier effective dates for the grants of service connection for a cervical spine disability and right and left upper extremity radiculopathy, the AOJ must assign the initial ratings for those disabilities in the first instance. The issues of increased initial ratings for those disabilities are inextricably intertwined with the initial ratings that will be assigned for those disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, Board adjudication of the increased rating claims at this time would be premature. Therefore, the Board will defer adjudication of those issues until the AOJ assigns those initial ratings. The Board notes that in December 2018, the Veteran, through his attorney, requested evidence associated with his claims file since VA last provided a copy of the claims file in September 2018 (more fully discussed in the Introduction of this decision). He submitted another FOIA request in January 2018, but specified which specific records he wanted; VA provided those specific records to him in March 2019. Please have the Veteran clarify whether he is still seeking any additional records. Any unassociated VA medical records should be associated with the claims file. The matters are REMANDED for the following actions: 1. Any unassociated VA medical records should be associated with the claims file. 2. Please have the Veteran clarify whether he is still seeking copies of any additional records from his claims file, in addition to those he specified in January 2019 (and received in March 2019). 3. After assigning initial ratings for (a) a cervical spine disability, (b) right upper extremity radiculopathy, and (c) left upper extremity radiculopathy, readjudicate the issues of entitlement to increased initial ratings for those issues. Perform any additional development deemed warranted. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disorder (other than plantar fasciitis). The claims file should be reviewed. The examiner is asked to opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should make clear EACH diagnosed right and/or left foot disorder and reconcile his/her findings with the evidence of record, to include the May 2015 private medical opinion of Dr. C. Bash, the August 2015 private medical opinion and private medical records of Dr. J. Digilio, and the April 2018 private medical opinion of Dr. J. Ellis. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea (OSA). The claims file should be reviewed. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should reconcile his/her findings with the evidence of record, to include the February 2015 private medical opinion of Dr. C. Bash and the December 2017 private medical opinion of Dr. D. Anaise. The examiner should also opine as to whether the Veteran’s disability is at least as likely as not caused by service-connected disability OR aggravated beyond its natural progression by service-connected disability. Service-connected disabilities claimed as causing OSA include the cervical spine disability and asthma. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio