Citation Nr: 18160678
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-03 851A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for tinnitus is granted.  
The appeal for entitlement to a rating in excess of 10 percent for cervical spine degenerative disc disease is dismissed.  
REMANDED
The issue of entitlement to service connection for traumatic brain injury (TBI) residuals is remanded.  
The issue of entitlement to service connection for a bilateral vision disability, to include exotropia, stereopsis, and visual disturbance, to include as due to TBI, is remanded.  
The issue of entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded.  
The issue of entitlement to service connection for left upper extremity radiculopathy is remanded.  
The issue of entitlement to service connection for left lower extremity radiculopathy is remanded.  
The issue of entitlement to ratings in excess of 30 percent prior to April 24, 2013, and in excess of 50 percent as of April 24, 2013, for a psychiatric disability of depressive disorder and posttraumatic stress disorder (PTSD) is remanded.  
The issue of entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease and sprain residuals with chronic groin pain, to include entitlement to separate compensable ratings, is remanded.  
FINDINGS OF FACT
1. Tinnitus originated during active service.  
2. At the July 2018 Board of Veterans’ Appeals (Board) hearing, the Veteran’s attorney expressly withdrew the appeal of the denial of a rating in excess of 10 percent for cervical spine degenerative disc disease.  
CONCLUSIONS OF LAW
1. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a).  
2. The criteria for withdrawal of the appeal from the denial of a rating in excess of 10 percent for cervical spine degenerative disc disease are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from September 1988 to September 1992, from February 2003 to January 2004, and from February 2004 to May 2004.  He served in Iraq.  The Veteran had additional duty with the Army National Guard.  
The Veteran appeared at an April 2013 hearing before a Department of Veterans Affairs (VA) Decision Review Officer (DRO).  The hearing transcript is of record.  The Veteran appeared at a July 2018 hearing before the undersigned Veterans Law Judge at the St. Petersburg, Florida, Regional Office.  The hearing transcript is of record.  
On and after March 24, 2015, claims for VA benefits are to be submitted on the appropriate claims form.  38 C.F.R. § 3.155.  At the April 2014 DRO hearing, the Veteran’s attorney withdrew the issue of entitlement to service connection for hypertension.  At the July 2018 Board hearing, the Veteran’s attorney stated that the Veteran sought service connection for both hypertension and right lower extremity radiculopathy.  The Board finds that the hearing transcript may be reasonably construed as an informal application to reopen the issue of entitlement to service connection for hypertension and an informal claim of entitlement to service connection for right lower extremity radiculopathy.  The Veteran should be provided with the appropriate claim form in order to submit an application to reopen the claim for service connection for hypertension and a claim of entitlement to service connection for right lower extremity radiculopathy if he desires.  
Service Connection for Tinnitus
The Veteran asserts that service connection for tinnitus is warranted as he initially experienced tinnitus during active service which has persisted until the present day.  
Service connection may be established for a disability arising 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 may be established 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 service medical records do not refer to tinnitus or ringing of the ears.  The service personnel records state that the Veteran served with the Army and Army National Guard as an infantryman and a motor transport operator.  He was deployed to Iraq.  A July 2005 written statement from the Veteran’s military commander states that their unit “frequently came under mortar, rocket, IED, and small arms fire while both on missions and on various base camps” in Iraq.  Therefore, the Veteran’s in service combat related noise exposure is conceded.  
The report of a July 2014 VA audiology examination states that the Veteran presented a history of a humming sound in his ears of “several years’” duration.  The Veteran was diagnosed with recurrent tinnitus.  The examiner concluded that “the Veteran’s tinnitus is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure.”  The VA audiologist commented that “the Veteran’s hearing is normal” and “tinnitus due to noise exposure is typically associated with high frequency SNHL and/or threshold shift.”  
At the July 2018 Board hearing, the Veteran testified that he had initially experienced tinnitus or ringing of the ears during active service and the disability had persisted until the present.  
The Board finds that the evidence is in at least equipoise as to whether the diagnosed tinnitus arose during active service.  The Veteran served in combat in Iraq.  His in service combat related noise exposure is conceded.  The Veteran has been diagnosed with recurrent tinnitus.  The Veteran is competent to report that tinnitus was present in service and that it has existed from service to the present.  38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002).  The Board finds that the Veteran’s credible report of continuity of symptomatology and the negative opinion of the VA examiner are in relative equipoise.  Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  
WITHDRAWAL OF CLAIM
At the July 2018 Board hearing, the Veteran’s attorney indicates that the issue of a rating in excess of 10 percent for cervical spine degenerative disc disease “was being withdrawn and would not be pursued.”  
An appellant or representative may withdraw a substantive appeal in writing at any time prior to the Board’s promulgation of a decision.  38 C.F.R. § 20.204.  The Board finds that the Veteran has effectively withdrawn the appeal from the denial of a rating in excess of 10 percent for cervical spine degenerative disc disease.  Therefore, the Board concludes that no allegation of fact or law remains as to that issue and that appeal must be dismissed.  38 U.S.C. § 7105.  
REMANDED ISSUES
1. The issues of entitlement to service connection for TBI residuals and a bilateral vision disability are remanded.  
The Veteran asserts that service connection for TBI residuals and an associated vision disability is warranted as he sustained a head trauma in a documented in service vehicle accident in Iraq and has been diagnosed by VA medical personnel with TBI residuals.  
The service medical records indicate that the Veteran hit his head against the ceiling of the truck he was driving in Iraq when it struck a hole on a dusty convoy road with low visibility in May 2003.  
The report of a March 2009 VA TBI examination states that “there is no evidence of a TBI or residuals of a TBI, therefore, an opinion is not warranted.”  
An October 2010 VA hospital summary reports that the Veteran was diagnosed with “mild TBI/post concussive syndrome due to IED blast;” cognitive deficit; “vestibular dysfunction related to injury;” and “chronic headache related to” the TBI.  A November 2014 VA psychiatric evaluation states that the Veteran was “diagnosed TBI at Tampa VA 10-19-2010.”  
VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  When VA obtains an evaluation, the evaluation must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because of the multiple VA TBI diagnoses made after the March 2009 VA TBI examination, the Board finds that further VA evaluation is required.  
Clinical documentation dated after January 2015 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  
Because of the nature of the claimed disabilities, the Board finds that the issue of service connection for a vision disability is inextricably intertwined with the issue of service connection for TBI residuals being remanded and therefore must also be remanded.  
2. The issue of entitlement to service connection for a sleep disorder is remanded.  
The Veteran contends that service connection for a sleep disability is warranted as diagnosed obstructive sleep apnea initially manifest during active service as excessive snoring and breathing impairment.  
The report of a July 2011 VA sleep disability examination states that the Veteran was diagnosed with obstructive sleep apnea.  The examiner concluded that “the Veteran’s current condition, OSA, is not caused by, or the result of the Veteran’s military service” as the Veteran’s “service medical records are completely silent for any mention of OSA for any mention of OSA” and the “separation physical dated 01/2004 revealed no mention of symptoms consistent with OSA.”  
A March 2013 written statement from E. R., who served with the Veteran in Iraq, stated that he slept next to the Veteran.  He recalled that the Veteran was “a terrible snorer” and sounded “like he was choking and gagging.”  
At the April 2013 DRO hearing, the Veteran testified that he had been told by his fellow soldiers that he snored and choked during his sleep.  
The Veteran has not been provided a VA sleep disorder examination which addresses the competent and credible 2013 lay testimony and statements as to the Veteran’s in service sleep symptoms.  The Board finds that such an evaluation is necessary to fully address the issues raised by this appeal.  
3. The issues of entitlement to service connection for left upper and lower extremity radiculopathy, and a rating in excess of 10 percent for a lumbar disability are remanded.  
The Veteran asserts that a service connected lumbar spine disability warrants assignment of a rating in excess of 10 percent and separate compensable ratings for left lower extremity radiculopathy and inguinal nerve impairment.  He contends further that service connection for left upper extremity radiculopathy is warranted secondary to the service connected cervical spine disability.  
At the July 2018 Board hearing, the Veteran testified that the service connected lumbar spine disability had increased in severity and was now manifested by pain which radiated to his foot and caused both legs to give out and severe groin pain.  
The Veteran was last provided a VA lumbar spine examination in January 2014.  Because of the Veteran’s testimony as to experiencing increased lumbar spine and groin pain and lower extremity radiculopathy and because of the passage of approximately four years since the last VA spine examination, the Board finds that further VA evaluation is needed.  
At the April 2013 DRO hearing, the Veteran testified that he experienced pain which radiated through the left upper extremity.  The Veteran has not been provided a VA examination which addresses the claimed left upper extremity radiculopathy and any relationship to service or a service connected disability.  
4. The issue of entitlement to increased ratings for depressive disorder and PTSD is remanded.  
The Veteran contends that the record supports assignment of a 70 percent rating for a service connected psychiatric disability.  
An April 2014 VA psychiatric treatment record states that the Veteran reported having suicidal thoughts.  At the July 2018 Board hearing, the Veteran testified that the service connected psychiatric disabilities had increased in severity.  
The Veteran was last provided a VA psychiatric examination in January 2014.  Because of the Veteran’s testimony as to the worsening of the service connected psychiatric disabilities and the passage of approximately four years since the last VA psychiatric examination, the Board finds that further VA evaluation is needed.  
The matters are REMANDED for the following action:
1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any TBI residuals, vision, sleep, left upper extremity, and left lower extremity disabilities, and service connected lumbar spine and psychiatric disabilities.  Make two requests for any authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile.  
2. Obtain the Veteran’s VA treatment records dated after January 2015.  
3. Schedule the Veteran for a VA TBI examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon).  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a)  Confirm that the examiner is a physiatrist, psychiatrist, neurologist, or neurosurgeon.
(b)  Diagnose all TBI or head injury residuals found.  If no TBI or head injury residuals are identified, the examiner should expressly state that fact, and should reconcile that finding with an October 2010 VA hospital summary that diagnosed with “mild TBI/post concussive syndrome due to IED blast;” cognitive deficit; “vestibular dysfunction related to injury;” and “chronic headache related to” TBI.  
(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified TBI or head injury residuals had their onset during active service or are related to any incident of service, including the documented in service May 2003 head trauma.  The examiner should specifically address the Veteran’s contentions that he has headaches and vision disturbances as a result of the documented in service head trauma.  
4. Schedule the Veteran for a VA examination with a medical doctor to assist in determining the nature and etiology of any identified sleep disability.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a)  Diagnose all sleep disabilities found.  
(b)  Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified sleep disability, to include sleep apnea, had its onset during active service or is related to any incident of service.  Reconcile the opinion with the competent and credible lay testimony and statements of record as to the Veteran’s in service sleep impairment including snoring, gagging, choking, and insomnia.  
5. Schedule the Veteran for a VA examination to assist in determining the current nature of any identified left upper extremity radiculopathy and left lower extremity radiculopathy and any relationship to active service or service connected disabilities and the severity of the service connected lumbar spine disability.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:
(a)  Diagnose all left upper extremity and left lower extremity neurological disabilities found, including the affected nerves and severity of any impairment.  
(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left upper extremity or left lower extremity neurological disability had its onset during active service or is related to any incident of service. 
(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any left upper extremity or left lower extremity neurological disability is due to or the result of the service-connected cervical spine degenerative disc disease, the lumbar spine degenerative disc disease, or the other service connected disabilities.  
(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any left upper extremity or left lower extremity neurological disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected cervical spine degenerative disc disease, the lumbar spine degenerative disc disease, or other service connected disabilities.  
(e)  Provide ranges of motion for passive and active motion of the lumbar spine.  The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up.  
(f)  Indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use.  
(g)  Note any incapacitating episodes associated with the lumbar spine disability.  An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  
6. Schedule the Veteran for a psychiatric examination to determine the current nature and severity of the service connected psychiatric disabilities.  The examiner must review the record and should note that review in the report.  The examiner should opine as to the levels of occupational impairment due to the service connected psychiatric disabilities and should describe the severity and frequency of symptoms that result in those levels of impairment.  

 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. T. Hutcheson, Counsel 

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