Citation Nr: 18145053 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 15-14 316 DATE: October 26, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a 10 percent initial disability rating for a headache condition is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder, anxiety disorder, and/or post-traumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for a headache condition is remanded. FINDINGS OF FACT 1. In giving the benefit of the doubt to the Veteran, the Board finds that he has tinnitus which is at least as likely as not attributable to in-service noise exposure. 2. The competent evidence of record shows that the Veteran’s headache condition is characterized by headaches with prostrating characteristics occurring at least once every two months. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to at least a 10 percent initial disability rating for a headache condition have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to November 2012. He testified at a hearing before the undersigned Veterans Law Judge in July 2018; a copy of the transcript of the hearing is of record. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claims of service connection for an adjustment disorder with anxiety as one for an acquired psychiatric disorder, to include an adjustment disorder, an anxiety disorder, and/or PTSD. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A review of the Veteran’s most recent VA medical records indicates that he is currently employed. Furthermore, none of the VA examiners who have evaluated his service-connected disabilities have determined that those conditions preclude him from securing and maintaining substantially gainful employment. Although the Veteran has asserted that his service-connected disabilities have caused him to miss work in the past, he has never contended that together his service-connected disabilities prevent him from working entirely. Accordingly, a claim of entitlement to TDIU has not been raised by the record. In recognition of the Veteran’s September 2018 correspondence request that the adjudication of his claim be expedited, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for tinnitus The Veteran contends that he developed symptoms of tinnitus while in service that have continued to the present. He asserts that his tinnitus his attributable to his exposure to loud noise while in service. The Board concludes that the Veteran has a current diagnosis of tinnitus and that, granting the Veteran the benefit of doubt, the evidence is at least in equipoise as to whether it is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Initially, the Board notes that the Veteran is competent to state that he has ringing in his ears, and thus the Board finds that he currently has tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The only question that remains is whether the Veteran had in-service noise exposure that the tinnitus is attributable to. A review of the Veteran’s DD Form 214 shows that he was awarded for service in the global war on terrorism as well as the Iraq campaign. It can be assumed from his receipt of these medals that the Veteran had exposure to noise from firearms, and, as such, military noise exposure is conceded. The Board notes that the Veteran was last afforded a formal VA examination in October 2012, immediately after his discharge from service, for the purpose of evaluating the nature and likely etiology of his tinnitus, during which he reported that his tinnitus symptoms began a few years prior. Without detailing any other evidence in the claims file, the examiner then opined that it was less likely than not that the Veteran’s tinnitus was associated with any claimed hearing loss. In support thereof, the examiner noted that there was no documentation of the Veteran having sought treatment for tinnitus while in service, and furthermore there was no significant shifts in the Veteran’s hearing acuity while he was in service. However, the examiner also acknowledged that they could not opine without speculation as to whether the tinnitus was attributable to another cause independent of any potential hearing loss. During the July 2018 hearing the Veteran asserted that he began to experience ringing in the ears in service. He also contended that he sought treatment for the ear ringing while in service but was told that there was nothing that the medical treatment providers could do. Ultimately, although the October 2012 VA examiner did opine that the tinnitus was not likely attributable to any hearing loss that may have occurred in service, they offered no opinion as to whether the Veteran’s tinnitus symptoms could have manifested in service or were otherwise attributable to in-service noise exposure. While the Board acknowledges that the Veteran did not specifically seek treatment for tinnitus symptoms while in service, and did not report experiencing any such symptoms at the time of his discharge, the fact remains that he has conceded in-service noise exposure and reported experiencing tinnitus symptoms when he was evaluated immediately after his discharge from service. The Veteran’s statements are competent, credible, and probative, and the Board finds that the record reasonably supports entitlement of the Veteran to service connection for tinnitus based on his lay statements. Consequently, service connection for tinnitus is granted. 38 U.S.C. § 5107(b). Entitlement to a compensable initial disability rating for a headache condition Upon consideration of the record, the Board finds that a 10 percent initial rating is warranted for a headache condition pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, as the Veteran has credibly asserted that he experiences headaches with prostrating characteristics at least once every two months. However, the Board is unable to determine the exact severity of the Veteran’s headache condition, especially in light of the most recently available VA examination dated in April 2015, in which the examiner found no evidence of prostrating attacks despite the Veteran’s testimony to the contrary. Therefore, the Board is granting an initial ten percent rating for the headache condition. The determination of whether a rating in excess of 10 percent is warranted is addressed in the REMAND section below. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was afforded a VA examination in December 2012 to evaluate the nature and likely etiology of his purported acquired psychiatric disorder. The examiner noted that the Veteran began receiving psychiatric treatment in service in 2010 to help him deal with issues in his marriage; however, the treatment finished in October 2012 when the Veteran was discharged from service, and he had not resumed any treatment since that time. It was the examiner’s impression that the Veteran’s symptomatology had resolved following his divorce from his former wife and having full custody of their children granted to him. The examiner also acknowledged that the Veteran was experiencing some anxiety at the time of the examination, but this was attributed to the fact that his house was destroyed two months prior. A review of post-service treatment records reflect that the Veteran has received mental health treatment since his December 2012 examination, to especially include a period of inpatient treatment in December 2015 wherein he was checked into the hospital after he expressed suicidal notions. Furthermore, in a May 2013 correspondence, the Veteran asserted that he was receiving private treatment for PTSD through a program for veterans provided by his state, and that his PTSD was associated with his service. On remand, the regional office should attempt to obtain any additional records pertaining to the Veteran’s post-service treatment for an acquired psychiatric disorder, and then afford him a new examination and opinion that takes into consideration this more contemporary treatment history and its possible connection to service. 2. Entitlement to a rating in excess of 10 percent for a headache condition is remanded. On the most recent VA examination to evaluate the severity of the headache condition dated in April 2015, the examiner found no evidence that the Veteran experienced any prostrating attacks of headache pain. This does not accord with the objective medical evidence of record, which shows that the Veteran does experience severe headache pain that forces him to rest for hours at a time. A new VA examination should therefore be conducted in order to properly evaluate the severity of the condition. The matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit and additional pertinent evidence regarding his treatment for any of the conditions at issue. To that end, the Veteran should also be invited to submit additional evidence in support of his claim, to include statements from friends and relatives. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Furthermore, regardless of how the Veteran responds, the RO must obtain and associate updated treatment records from any VA medical center at which the Veteran has sought treatment, pursuant to the provisions of 38 C.F.R. § 3.159(e). 2. After making all reasonable attempts to obtain additional treatment records, schedule the Veteran for a VA mental health examination, with a psychiatrist or psychologist, to evaluate the nature and etiology of any acquired psychiatric disorder. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any symptoms of his acquired psychiatric disorder. All necessary special studies or tests must be accomplished. The examiner must first provide diagnoses for all currently and previously diagnosed psychiatric disorders found. If a diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether the reported stressors are sufficient to produce PTSD; and (2) whether there is a link between PTSD symptomatology and the in-service stressors found to be established by the record and found sufficient to produce PTSD. For any diagnosis other than PTSD, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder is related to the Veteran’s military service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Schedule the Veteran for a VA headache examination to evaluate the severity of the headache condition. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests should be performed and all findings should be reported in detail. After an in-person examination, the examiner must describe the nature and severity of all manifestations of the Veteran’s headache condition, and their effects on his functioning. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel