Citation Nr: 18141084 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-19 761A DATE: October 9, 2018 ORDER Service connection for tinnitus is denied. Service connection for pseudofolliculitis barbae (PFB) is denied. Service connection for a headache disorder is denied. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. Entitlement to a temporary total rating for convalescence due to an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral tinnitus; the Veteran was not exposed to acoustic trauma during service; symptoms of tinnitus were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the current tinnitus manifested many years after service separation and is not causally or etiologically related to active service. 2. The Veteran is currently diagnosed with PFB; the current PFB is not etiologically related to active service. 3. The Veteran does not have a current headache disorder. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for PFB have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 1983 to August 1987. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran currently has tinnitus (as an organic disease of the nervous system), which is a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 “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 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 organic diseases of the nervous system, 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 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. 1. Service Connection for Tinnitus The Veteran generally contends that service connection for tinnitus is warranted. The Veteran asserts that he first noticed symptoms of tinnitus around 1985 during active service. Initially, the Board finds the Veteran is currently diagnosed with bilateral tinnitus. See April 2016 VA examination report. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the current tinnitus was not incurred in, or otherwise etiologically related to active service, and does not meet the criteria for presumptive service connection. The evidence does not demonstrate that chronic symptoms of tinnitus manifested in service, that such symptoms were continuous since service separation, or that tinnitus manifested to a compensable degree within one year of service separation. Service treatment records do not reflect any complaints, symptoms, or diagnosis of tinnitus during service, and military personnel records do not indicate that the Veteran’s military occupation specialty exposed him to acoustic trauma. Comparison of a September 1982 service enlistment audiometric examination and a June 1987 service separation audiometric examination shows no significant threshold shifts in decibel levels in either ear, and the June 1987 service separation examination reflects hearing acuity was tested to be within normal limits. Although the Veteran asserts that tinnitus had its onset during service in 1985, this assertion is inconsistent with the other lay and medical evidence of record, including the service treatment records and the Veteran’s own histories presented while seeking medical treatment. An August 2012 VA treatment record for an audiology consultation shows the Veteran denied tinnitus, hearing loss, or any other audio complaints. Audiometric examination results in August 2012 revealed pure tone thresholds within normal limits in both ears. As such, the lay and medical evidence weighs against a finding of chronic symptoms of tinnitus during service or continuous symptoms of tinnitus since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in service or “continuous” post-service symptoms. Further, the lay and medical evidence reflects the reports of tinnitus during the April 2016 VA examination, nearly 26 years after service separation and 25 years after the presumptive period. As tinnitus did not manifest within one year of service separation, the criteria for manifestation of tinnitus to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. See 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran underwent a VA audiometric examination in April 2016. During the April 2016 VA examination, the Veteran reported the onset of tinnitus in approximately 1985 during active service from grenades and other small arms ammunition fire. The Veteran reported occupational noise exposure from working in construction for approximately one month and recreational noise exposure from lawn equipment. After a review of the history and testing of the Veteran, the VA examiner opined that it is less likely than not that the current tinnitus is the result of military service as service treatment records reflect no significant threshold shift in decibel levels. The VA examiner explained that, in the absence of verifiable noise injury from military service, the association between the claimed tinnitus and noise exposure cannot be assumed to exist. The VA examiner opined that the Veteran’s current right ear hearing loss shown on the April 2016 VA examination report is most likely related to post-service occupational and recreational noise exposure. Based on the foregoing, the weight of the competent evidence demonstrates no relationship between the Veteran’s current tinnitus disorder and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus on direct, presumptive, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for PFB The Veteran asserts that currently diagnosed PFB is the result of being forced to shave on a dry face during active service that permanently damaged the hair follicle on the face. The Veteran asserts that he was given a shaving profile during service and was allowed to shave only once every two weeks. See September 2018 Statement. At the outset, the Board finds that the Veteran is currently diagnosed with PFB. See September 2012 VA treatment record. After a review of all the lay and medical evidence, the Board finds that the current PFB did not have its onset during service and is not etiologically related to active service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for PFB during service, and post-service treatment records do not reflect complaints or treatment for PFB until September 2012 when seeking service connection. Additionally, the record does not contain any competent medical opinion establishing a medical nexus between the current PFB and active service. For these reasons, the Board finds that the criteria for service connection for PFB have not been met. 3. Service Connection for a Headache Disorder The Veteran generally contends that service connection for a headache disorder is warranted because service treatment records reflect the Veteran complained of a bitemporal headache of two days’ duration in July 1985. The Veteran further asserts having headaches from lack of sleep or relating to nightmares associated with an acquired psychiatric disorder. See September 2018 Statement. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed headache disorder. VA treatment records throughout the relevant claim period on appeal do not reflect any complaints, treatment, or diagnosis for headaches or a headache disorder. To the contrary, VA treatment records show the Veteran has continuously denied symptoms of headaches. See e.g. November 2010 VA treatment record; September 2014 VA treatment record; July 2015 VA treatment record; September 2016 VA treatment record; March 2018 VA treatment record. Because the weight of the evidence demonstrates the Veteran is not currently diagnosed with a headache disorder, the claim for service connection for a headache disorder must be denied. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. 2. Temporary total rating for convalescence due to an acquired psychiatric disorder is remanded. The Veteran asserts developing an acquired psychiatric disorder after witnessing a fellow service member commit suicide by being run over by a train in 1987; the Veteran states that the acquired psychiatric disorder resulted in a suicide attempt and subsequent hospitalization in 2009. See September 2018 Statement. VA treatment records show the Veteran has been diagnosed with an acquired psychiatric disorder including PTSD and depression. The record reflects that the Veteran’s claimed stressor incident that occurred in 1987 could not be researched or verified due to insufficient information, which was solicited prior to the Veteran obtaining representation. Additionally, the Veteran has not been provided with a VA mental health examination. As such, the Board finds that remand is necessary for further development. The matters are REMANDED for the following action: 1. The RO should contact the Joint Services Records Research Center (JSRRC), National Archives and Records Administration (NARA), or other appropriate repository and request records pertaining to the suicide death of a service member in 1987. All attempts should be documented in the claims file. 2. Schedule a VA examination in order to assess the Veteran’s current acquired psychiatric disorder(s). The VA examiner should diagnose all acquired psychiatric disorders and then provide the following opinions: a. If, and only if, a stressor is verified, the VA examiner should opine as to whether the Veteran meets the criteria for PTSD contained in the DSM-V, and, if he meets such criteria, whether PTSD is related to any verified in-service stressor. b. Does the Veteran have a current diagnosis of any other acquired psychiatric disorder(s)? If so, opine as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that any such acquired psychiatric disorder is related to the reported service stressor. The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel