Citation Nr: 1648531	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-31 456A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for lung nodules.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a back disability.

4.  Entitlement to service connection for fibroids.


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

E. Redman, Counsel


INTRODUCTION

The Veteran served in the Air Force Reserves until August 1994, to include periods of active duty for training (ACDUTRA) from February 1987 to June 1987, during July 1987, and from May 1988 to June 1988.  She served on active duty from February 1991 to August 1991.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

In July 2016 the Veteran testified before the undersigned at a videoconference hearing.  A transcript of that hearing is of record.  At the hearing the Veteran clarified that the ear condition she is seeking service connection for is tinnitus.  This is reflected on the title page of this decision.

The issues of entitlement to service connection for a back disability and fibroids are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required regarding these issues.


FINDINGS OF FACT

1.  The Veteran does not have a current disability manifested by lung nodules that was incurred in, caused by, aggravated by, or otherwise related to her military service.

2.  The Veteran has credibly asserted that she had tinnitus during her active duty service and at present.  
CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for lung nodules have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2.  The criteria for establishing service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015).  Compliant notice was provided in a December 2008 letter.  

VA has also fulfilled its duty to assist.  VA obtained the Veteran's service treatment records and identified post-service treatment records.  During the appeal period, VA provided the Veteran with relevant examinations.  The examiners considered the Veteran's reported history, examined the Veteran, described her disability in detail, and provided an analysis to support the conclusions reached.  Therefore, the examinations are adequate and allow the Board to make an informed decision.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  

As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

Given the above, no further action related to the duties to notify and assist is required in this case.  

Analysis

Generally, to establish service connection, a claimant must show: (1) 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 incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may additionally be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA).  38 U.S.C.A. §§ 101(24), 106 (West 2014).

VA has established certain rules and presumptions for chronic diseases.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. § 3.303(b).  In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Malignant tumors and organic diseases of the nervous system such as tinnitus are considered by VA to be chronic diseases.  38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).



i. Lung Nodules

The Veteran claims that she is entitled to service connection for lung nodules due to inhalation of smoke and fumes on the flight deck during service.  

Service treatment records reflect no treatment related to or diagnosis of lung nodules during service.  In an August 1990 report of medical history, the Veteran denied experiencing shortness of breath, pain or pressure in the chest, and other common respiratory complaints.  Examination of the lungs and chest was normal at that time.  It was noted that chest X-ray was normal.    

Private treatment records dating in March 2007 reflect diagnoses of nodules on the right upper lobe and left lower lobe of the lungs, shown on CT scan.  These nodules were again present on a June 2008 CT scan.   

In October 2007, the Veteran told a private physician that for the past 10 years she had woken up with significant black sputum production.  In this and follow up visits, she reported working in a military warehouse in the 1990's that had a lot of soot.  The physician's impression in October 2007 included reference to the nodules noted on CT scan above, as well as a separate line indicating history of black sputum production with prior history of environmental exposure to soot.  The physician has not opined that there is any relationship between the Veteran's military service and her lung nodules.  

The Veteran was afforded a VA examination in August 2012.  There was no current pulmonary finding/pathology at the time of the examination to render a diagnosis; the nodules were not present on examination in August 2012.  The examiner opined that it is less likely as not that the Veteran's lung nodules were incurred in or caused by the claimed in-service event, injury, or illness.  The examiner reasoned that there is no X-ray documentation of this condition during service.  Moreover, diesel fuel exposure is not known to cause this condition.

A July 2014 VA computed tomography (CT) scan revealed no focal consolidation, mass, or effusion of the lungs.  

In this case, the Veteran filed her claim for service connection in December 2008.  The competent evidence of record does not establish that a disability manifested by lung nodules was ever present since the filing of the claim.  However, the Board recognizes that a diagnosis of disability prior to filing of a claim can constitute evidence of a current disability if it is sufficiently proximate to the filing of a claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013).  In this case, lung nodules were noted on CT scan the year the Veteran filed her claim.  However, to the extent this represents a current disability the Board finds that the evidence is against a finding that such disability is related to the Veteran's military service.   

The only medical opinion addressing the etiology of the Veteran's lung nodules is the August 2012 VA opinion, which is adverse to the claim.  In support of the opinion, the examiner noted that there was no X-ray evidence showing lung nodules in service.  This is supported by the fact that chest X-ray around August 1990 was normal.  The Board recognizes that the Veteran served on active duty after August 1990.  However, again, there is no medical documentation related to lung nodules during her active duty or for years thereafter.  Thus, the evidence is not in conflict with the VA examiner's adverse opinion or rationale.  The examiner also noted that diesel fuel exposure is not known to cause lung nodules.  Given the above, the Board is affording the VA opinion high probative value.  This represents the most probative evidence in this case and is against a finding of service connection.  

The Board has reviewed the internet articles submitted by the Veteran.  None of these articles indicates that she has lung nodules related to exposure to fumes or fuel during service.  

While the Veteran has indicated that her lung nodules started as chest pains, she has not submitted any competent evidence suggesting that any lung nodules were caused or aggravated by her service-connected costochondritis, which is a musculoskeletal disability rather than a respiratory disability.  As such, further discussion of service-connection on a secondary basis is not warranted.  See 38 C.F.R. § 3.310 (2016).  

Likewise, there is no evidence or assertion that the Veteran had a malignant tumor or other chronic disease during service or in the year after her separation from active duty.  As such, further discussion of the presumption related to chronic diseases is not necessary.  See 38 C.F.R. § 3.309(a).

As the preponderance of the evidence is against the claim, it must be denied.  

ii. Tinnitus

Medical records show a current diagnosis of tinnitus.  Thus, the remaining question is whether the Veteran's tinnitus is related to her military service.  

The Veteran testified that she worked on the flight deck during service as a mechanic and was exposed to loud noise without always using hearing protection.  The Veteran further testified that she first experienced rattling or ringing in her ears in the early 1990's during service, and that it continued ever since.  The service treatment records reflect that in 1991 the Veteran was seen for ear fullness and pain.  The assessment was TMJ.  No assessment of tinnitus was rendered and no further related complaints are in the service treatment records.

The Veteran was afforded a VA examination in August 2012.  During the examination she reported that her ear problems started during the military with an occasional stuffy, clogged left ear.  The current left ear intermittent tinnitus was noticed for about 10 years.  The examiner opined that tinnitus was not related to service given the onset date reported by the Veteran. 

In a September 2016 statement, the Veteran stated that she has experienced a buzzing and ringing in her ear since leaving the military.  

While the Veteran's reports of onset of tinnitus are somewhat conflicting, the Board finds that they are not so much in conflict as to lack credibility.  Essentially, the Veteran contends that she had ear problems during the military.  At her hearing she stated this included a ringing in her ear.  The Board finds the testimony to be credible.  

As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted.  See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).    


ORDER

Entitlement to service connection for lung nodules is denied.

Entitlement to service connection for tinnitus is granted.  


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).

The Veteran claims that service connection for fibroids is warranted because they began during service in approximately June 1991, manifesting as groin pain.

The service treatment records reflect that the Veteran was seen in May and July 1991 for right groin pain.  On May 20, 1991 she had dull, aching right lower quadrant pain for the past two days.  On July 11, 1991 she had right flank pain, right groin pain, and hematuria.  It appears that medication was given for cramping.  Additionally, a July 15, 1987 service treatment record reflects that the Veteran was seen for left abdominal pain and low back pain.  She was diagnosed with a urinary tract infection.  

The post service medical evidence includes a September 2016 letter from the Veteran's obstetrician/gynecologist, Dr. Olugbenga.  Dr. Olugbenga noted that the Veteran underwent a myomectomy in July 2002 for a history of severe dysmenorrhea, menorrhagia, and multiple uterine fibroids.  July 1987 and July 1991 dates of treatment were noted but not explained.  Doctor Olugbenga opined that the Veteran's uterine fibroids most likely began during service and more likely than not are the same symptoms she continues to suffer with, but did not provide a rationale for this opinion.   

An August 2012 VA examination report reflects that it is less likely than not that the fibroids were incurred in or caused by the claimed in-service event, injury, or illness.  The examiner reasoned that this is because there was no separation physical examination, diesel fuel exposure is not known to cause this condition, and the examiner could not find documentation that this condition occurred while on active duty.  However, the examiner did not address the in-service complaints of abdominal pain.  Given the above, the Board finds that another VA opinion is necessary.  

The Veteran claims that service connection is warranted for a back disability because it began in service and continued ever since.  A review of the service treatment records reflects that on a July 15, 1987 the Veteran was seen for left abdominal pain and low back pain.  A May 30, 1988 service treatment record reflects that the Veteran had low back pain after playing basketball.  Back spasm was noted on examination.  In an August 1990 report of medical history the Veteran denied having had recurrent back pain, and examination of the spine was normal at that time.  A 1991 service treatment record reflects complaint of lower neck, upper back pain.  The assessment was musculoskeletal pain of the cervical spine.  The Board notes service connection has already been awarded for a cervical spine disability.

In September 2016, a private physician noted diagnoses of lumbalgia, segmental dysfunction of the lumbar spine, cervical radiculopathy, and segmental dysfunction of the cervical spine.  The examiner referenced treatment in the military in 1988 and 1991, which the Board assumes references the low back pain in 1988 and cervical spine pain in 1991.  The physician opined that the current condition was highly likely related to the Veteran's military service.  However, the physician did not account for the normal evaluation of the spine and report of not having had recurrent back pain in August 1990, which postdates the last complaint of low back pain during service.  

The Veteran underwent a VA examination regarding her back in August 2012.  The examination report reflects the Veteran's contention that back problems started in May 1987 and May 1988 and have continued and worsened since.  The examiner diagnosed lumbar strain.  The examiner opined that it is less likely than not that the Veteran's back disability was incurred in or caused by the claimed in-service event, injury or illness.  The examiner reasoned that no separation examination was available for review and although there was evidence of musculoskeletal pain/spasm, there was no indication that the current back problem occurred while on active duty.  The examiner did not address the significance of the back complaints in the service treatment records dated in July 1987 and May 1988.  Essentially, the examiner did not reconcile the finding of low back complaints during service with the opinion that current back problems did not occur during service.  

Given the deficiencies in the opinions of record, another VA opinion regarding the low back disability is necessary.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Send the Veteran's claims file to an examiner to offer an opinion regarding the etiology of her fibroids.  Only if the examiner determines that an examination of the Veteran is necessary to provide the requested opinion should an examination be scheduled.  A complete rationale for all opinions expressed should be provided.  The examiner is asked to address the following:

Is it at least is as likely as not (50 percent probability or greater) that any current fibroids arose during service or are otherwise related to service?

In offering the opinion, the examiner should consider the July 1987 treatment for abdominal pain and the May and July 1991 treatment for right groin pain, which took place during military service.  

2.  Send the Veteran's claims file to an examiner to offer an opinion regarding the etiology of her low back complaints.  Only if the examiner determines that an examination of the Veteran is necessary to provide the requested opinion should an examination be scheduled.  A complete rationale for all opinions expressed should be provided.  The examiner is asked to address the following:

Is it at least is as likely as not (50 percent probability or greater) that any current disability of the back (other than the cervical spine) arose during service or is otherwise related to service?

In offering an opinion, the examiner should consider the complaints of low back pain in July 1987 and May 1988, which took place during military service, as well as the normal examination of the spine and report of no recurrent back pain in August 1990.  

3.  After the development requested is completed, readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, furnish the Veteran a Supplemental Statement of the Case and allow him a reasonable opportunity to respond before returning the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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