Citation Nr: 18143829 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 10-12 244 DATE: October 23, 2018 ORDER Service connection for an acquired psychiatric disorder, which has been variably diagnosed as a depressive disorder and anxiety disorder during the appeal period, is granted. REMANDED Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a right thigh condition is remanded. Entitlement to service connection for a testicular condition, to include torsion, is remanded. Entitlement to a disability rating in excess of 10 percent for tinnitus, to include entitlement to an extraschedular rating, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REFERRED In November 2017, the Veteran submitted multiple claims for benefits. These matters are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The evidence shows that the Veteran’s acquired psychiatric disorder was aggravated during his second period of active duty. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1111, 1153, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to October 1993 and February 2004 to December 2004. He also has additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in January 2009. In April 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Board has recharacterized the Veteran’s claims for benefits for various psychiatric disorders as a single claim for service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), bipolar disorder, generalized anxiety disorder, chronic adjustment disorder, and posttraumatic stress disorder (PTSD). See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). In a rating decision dated in July 1994, the RO denied the Veteran’s claim of service connection for a right elbow condition because the evidence did not show a chronic condition. The Veteran did not file a notice of disagreement with this rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 1994 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105 (2017). In a January 2009 rating decision, the RO denied the Veteran’s May 2008 petition to reopen a claim for service connection for a right elbow condition because VA was not in receipt of any new and material evidence in support of the claim. The Board notes, however, that pain alone may constitute functional impairment for which service connection may be granted, and thus, the Veteran’s current complaints of pain constitute new and material evidence of a possible chronic condition. See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Therefore, the Veteran’s claim is reopened. See Morris v. Principi, 239 F.3d 1292, 1296 (Fed. Cir. 2001) (refusing to require the Board to explain its reasoning in the section of its opinion entitled “Reasons and Bases” rather than in the “Introduction”). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). However, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (2012). When that is the case, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). 1. Entitlement to service connection for an acquired psychiatric disorder, to include MDD, bipolar disorder, generalized anxiety disorder, chronic adjustment disorder, and PTSD. During the April 2018 Board hearing, the Veteran and his representative reported that the Veteran was seen for a psychiatric condition prior to active service, continued to receive treatment after going on active duty in 2004, was seen four times for his condition during that period of active duty, and was diagnosed with depression and anxiety. The Veteran indicated that his psychiatric symptoms worsened during his second period of active duty service; the separation from his family and being stationed overseas was emotionally distressing and he was put through psychological torture by other service members. A September 1993 Report of Medical History that was recorded upon the Veteran’s separation from his first period of service documents his endorsement that he has experienced depression or excessive worry in the form of “tolerable stress,” but the evidence does not document a psychiatric diagnosis at that time. During his second period of active duty, the Veteran reported feeling down and depressed nearly every day, increased irritability, difficulty falling asleep, and severe worry and anxiety. See June 2004 Service Treatment Records (STRs). About three weeks later, the Veteran reported an immediate improvement in symptoms with increased dose of Paxil. See id. In November 2004, it was noted that he was doing well, had good control, and did not report adverse side effects or complain of sad or depressed mood, and he was diagnosed with an anxiety disorder. Notably, however, a December 2004 Report of Medical Assessment that was recorded upon his separation from service documents the Veteran’s endorsement that his overall health was worse since his last medical assessment and that he was seen for multiple conditions, including depression, since his last assessment. Post-active duty treatment records that are dated in February 2008 document a history of depression with gradual onset and that had been occurring in an intermittent pattern for 5 years, or since 2003. See February 2008 Upper Valley Family Care treatment records. According to these records, “[t]he course [of the Veteran’s condition] has been increasing.” Similarly, a March 2009 VA Psychiatry Consult note indicates that the Veteran has had problems managing his anxiety and depression symptoms since his 2004 deployment. The reporting clinician noted that the Veteran was diagnosed with depression in 2003 and prescribed Paxil. Further, a May 2009 VA Psychiatry Note documents the Veteran’s report that he first started having psychiatric problems in 2004 when he was still in service and the reporting clinician noted that the Veteran started experiencing depressive symptoms that were precipitated by the stress of being overseas and away from his family in 2004. Here, there is no entrance examination associated with the Veteran’s STRs for his February 2004 to December 2004 period of service. The presumptions of soundness and aggravation do not apply when a claimant, Veteran or otherwise, has not been examined contemporaneous to entering a period of active service. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Thus, the Veteran is not presumed sound upon entry as to his period of active duty beginning in February 2004. The Board finds that the STRs and post-service treatment records indicate that the Veteran’s psychiatric problems pre-existed his second period of service. Overall, in light of the Veteran’s competent and credible reports that his psychiatric symptoms worsened during service and resolving any doubt in his favor, the Board finds that an acquired psychiatric disorder was aggravated during his February 2004 to December 2004 period of service. Accordingly, service connection is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Notably, during his April 2018 hearing before the undersigned Veterans Law Judge, the Veteran indicated that a grant of service connection for any psychiatric disorder would satisfy his appeal. See Board Hearing Transcript, p. 9. Thus, the Board’s grant of service connection represents a complete grant of the benefit sought and no further discussion is necessary. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS FOR REMAND 1. Entitlement to service connection for a right elbow condition, right thigh condition, and testicular condition is remanded. The Veteran seeks service connection for right elbow, right thigh, and testicular conditions, which are manifested by symptoms such as pain. See generally Board Hearing transcript. Notably, at present, he either does not have specific diagnoses or is not aware of specific diagnoses that account for his symptoms. See id. On remand, the RO should schedule the Veteran for an examination to clarify his diagnoses or, in the alternative, determine whether the Veteran has functional impairment for which service connection may be granted. See Saunders, 886 F.3d at 1363-64. With regard to the claim for service connection for a testicular condition, the Board notes that the Veteran was previously diagnosed with epididymitis during the appeal period. See March 2009 VA Primary Care Note. VA must also determine whether service connection is warranted for this condition as well. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”). Additionally, in an October 2009 claim for benefits (VA Form 21-526), the Veteran reported that he has received treatment from multiple non-VA providers and, in a March 2016 statement, the Veteran documented the areas where he served from October 1989 to October 2005 and indicated that he has not been successful in obtaining any related STRs. In light of the Veteran’s reports, the Board finds that VA should make reasonable efforts to associate any outstanding records with the claims file. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence also indicates that the Veteran served on active duty from July 1990 to October 1993 and from February 2004 to December 2004 and that he has additional service in the Army National Guard. According to the Veteran, he served in the Army National Guard from 1993 to 2007. See September 2009 VA Mental Health Counseling Note. The Veteran’s periods of active duty for training and inactive duty for training are unclear; thus, on remand, VA should take reasonable steps to clearly identify and characterize the Veteran’s periods of National Guard service. 2. Entitlement to a disability rating in excess of 10 percent for tinnitus, to include entitlement to an extraschedular rating, is remanded. In October 2009, a VA audiology department submitted a neurology outpatient consult request after the Veteran complained of feelings of lightheadedness, dizziness, and imbalance, and reported that his tinnitus intensifies during these episodes. The Veteran also reported experiencing blurred vision or vision that is obstructed by black spots/lines, seeing “flash bulb”-like orbs, a reduction in hearing acuity, nausea, and loss of consciousness on occasion. An August 2009 VA audiology note also indicates that the Veteran reported having dizziness problems for the past 2 years. This was reported in response to questions regarding the effects of his tinnitus and hearing problems. During his April 2018 Board hearing, the Veteran reported that he experiences a continuous, constant ringing and buzzing in ear that sometimes overpowers what is being heard, keeps him awake at night, and is distracting during the day and night. He also testified that he has experienced confusion and disorientation and has not been diagnosed with insomnia or any other sleep condition, but has sleep problems due to tinnitus. He and his representative indicated that his symptoms (including confusion, insomnia, depression, and anxiety) are not contemplated by the rating criteria and the Veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321. In light of the foregoing, the Board finds that the matter of the Veteran’s entitlement to an extraschedular rating for tinnitus is before the Board as part of his claim for an increased rating, an examination should be provided to assess the current severity of his disability, and the RO should consider whether to refer the matter of his entitlement to an extraschedular rating to the Director, Compensation Service. 3. Entitlement to a TDIU is remanded. As the Veteran’s claim for a TDIU is inextricably intertwined with the claims being remanded, the Board finds that this issue must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Make reasonable efforts to obtain service treatment records that are dated from October 1989 to October 2005 from all the places and service stations that are referenced in the Veteran’s March 2016 statement. 2. Request that the Veteran provide or authorize VA to obtain relevant treatment records from the clinicians that are referenced in his October 2009 claim for benefits (VA Form 21-526). If any records requested by VA are not available, this should be indicated in the file. 3. Attempt to verify all periods of the Veteran’s service by contacting all appropriate record sources. As precisely as possible, identify the Veteran’s periods of active duty, active duty for training, and inactive duty for training. In doing so, note the sources of the information obtained to identify the Veteran’s periods of recognized service. All efforts to contact record sources and any negative responses should be documented in the claims file. 4. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. After completing the development requested above, schedule the Veteran for a VA examination to address his claimed right elbow, right thigh, and testicular conditions. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate testing should be conducted, and all findings reported in detail. The examiner must answer each of the following: (a) Identify all right elbow, right thigh, and testicular conditions present on examination or that were present during the appeal period (since May 2008). Please note specifically whether there is any functional impairment, with or without a specific diagnosis. In doing so, rule in or exclude the Veteran’s previous diagnosis of epididymitis. (b) For every disability diagnosed on examination, or functional impairment identified, the examiner should provide a likely date of onset (to the extent that it is possible). (c) For every disability diagnosed on examination, or functional impairment identified, the examiner should provide an opinion as to both of the following: Is it at least as likely as not that the disability or functional impairment had its onset during a period of active service? Is it at least as likely as not that the disability or functional impairment was otherwise caused or aggravated by a period of active service? Is it at least as likely as not that the disability or functional impairment was otherwise caused or aggravated by a service-connected disability (a psychiatric disorder, right shoulder disability, left ear hearing loss, and/or tinnitus)? A full explanation should be provided to support all opinions expressed. 6. Schedule the Veteran for an appropriate VA examination to determine the extent and severity of his tinnitus. All necessary tests must be conducted and all symptoms related with the Veteran’s tinnitus should be described in detail. 7. Consider whether to refer the matter of the Veteran’s entitlement to an extraschedular rating for tinnitus to the Director, Compensation Service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel