Citation Nr: 18140220 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-44 264 DATE: October 2, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for depressive disorder is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a prostate disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. Tinnitus did not manifest in service, within the one-year presumptive period or for many years thereafter, and is unrelated to service, to include any in-service noise exposure. 2. The evidence is at least evenly balanced as to whether the Veteran’s depressive disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain 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 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims has held that tinnitus is “chronic disease” under 38 C.F.R. § 3.309(a) where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The Veteran contends that his tinnitus is the result of acoustic trauma sustained in service. The Veteran has offered competent, credible testimony that he experiences tinnitus and has thus met the current disability requirement. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The dispositive issue is therefore whether tinnitus is in some way related to service. There is one medical opinion addressing this matter. In July 2014, a VA contract audiologist opined, after reviewing the claims file and performing an examination, that it was less likely than not that the appellant’s tinnitus was related to service. Although the examiner noted that the Veteran’s military occupation involved working as a mechanic and being exposed the noise of heavy equipment, driving trucks, and rifle and grenade ranges without hearing protection, the examiner noted that the Veteran reported that his tinnitus first onset in 1986 (seven years after separation from service) and service treatment records were negative for complaints of tinnitus during service. The examiner also noted that the Veteran reported that his post-service noise exposure included working in construction for 15 years which involved noise exposure from a mortar mixer; working as a mechanic on cars and trucks for eight years; and working as a truck driver for four years which involved being exposed to loud engines. Recreational noise exposure included the use of lawnmowers, weed trimmers, chain saws, power tools, hunting, target shooting, tractor use and loud music. The Veteran denied using hearing protection during his post-service occupational or recreational activities. As the VA opinion was provided by a medical professional trained in audiological disorders and was supported by rationale that is consistent with the evidence of record, the Board affords it significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The opinion was made following a review of entire claims file and indicates that the examiner fully considered all potentially relevant medical evidence as well as the Veteran’s contentions. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). There is no contrary opinion. Based on the above, the Board finds that a preponderance of the evidence is against the claim. The Board’s review of the claims file confirms that service treatment records show normal ears and neurologic systems on clinical evaluation at separation in January 1979 and that the Veteran denied ear trouble. Although the Veteran’s military occupation involved working as a combat engineer and a power generator and wheel vehicle mechanic and service treatment records indicate that he may have been on a hearing conservation program, service treatment records are otherwise negative for complaints related to ringing in the ears. Again, the July 2014 examination includes a patient history form where the Veteran wrote that the ringing in his ears started in 1986. This puts the onset of his tinnitus at the earliest, several years after his separation from service. To the extent the Veteran has offered his opinion that his tinnitus onset well after service but is otherwise related to service, this testimony appears to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“sometimes 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”). To the extent he is competent to so opine, the specific, reasoned opinion of the VA examiner is of greater probative weight than any such general lay assertion. Further, the probative evidence of record shows that tinnitus did not onset during service or for many years thereafter. 38 C.F.R. § 3.309 (a); Fountain, 27 Vet. App. at 258. The Board also observes that there is no evidence to show that tinnitus existed or was “noted” in service. Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application. Accordingly, even assuming the Veteran experienced acoustic trauma in service, his claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. Depressive Disorder As to depressive disorder, the Veteran contends, in relevant part, that it began during service. In support of his claim, the Veteran has submitted a statement from his cousin who reports that before the Veteran went into service, he was a very outgoing, happy person who enjoyed socializing but after he returned home, he was a different person who did not enjoy socializing or doing things that he used to do. See November 2014 statement. The Veteran has also submitted a statement from his brother who indicated that before the Veteran entered service, he had a lot of friends, was active and played sports but that during his period of military service, he became withdrawn, his family did not see him and was worried about how his personality had changed. See August 2015 statement. In April 2016, after reviewing the claims file and examining the Veteran, a private psychologist diagnosed the Veteran with unspecified depressive disorder and opined, in relevant part, that it was more likely than not that the Veteran’s depressive disorder began in service and continued since that time. In support, the examiner cited the lay statements from the Veteran’s cousin and brother, as well as medical literature indicating that active military service impacts depression and quality of life satisfaction. At the examination, the Veteran denied a history of pre-military, military, and post-military substance abuse. Service treatment records show that at separation, there was normal psychiatric clinical evaluation; a summary of defects and diagnoses noted, however, that the Veteran had a history of alcoholism with success at rehabilitation. No VA examination has been obtained. In sum, the private examiner, a psychologist, is competent to diagnose an acquired psychiatric disorder and to opine as to its etiology. Given that she indicated that she reviewed the claims file, examined the Veteran, and provided an opinion that is broadly consistent with the evidence in the claims file, the Board finds the opinion entitled to sufficient weight to support the Veteran’s claim, and the Board finds that the claim should be granted. REASONS FOR REMAND As to service connection for headaches, the Veteran appears to contend that his current headaches began during service. See December 2013 correspondence. Although VA treatment records do not appear to show that he has been diagnosed with a headache disorder, the Veteran is competent to diagnose such a condition and to the extent he contends that his headaches began during service and have continued since then, the Board finds such evidence sufficient to warrant obtaining an etiological examination and opinion. Any outstanding VA treatment records, to include from the Huntington VA Medical Center from May 2009 to the present and from the Salem VA Medical Center from January 2010 to the present, should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records, to include from the Huntington VA Medical Center from May 2009 to the present and from the Salem VA Medical Center from January 2010 to the present. 2. Schedule the Veteran for a VA examination to address to the etiology of any current headache disorder. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify all current headache disorders. Then, for each disorder, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that it is related to or had its onset during any period of active duty service. A complete rationale should accompany any opinion provided. 3. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel