Citation Nr: 18146277 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-35 611 DATE: October 31, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a respiratory disorder, to include allergic rhinitis and/or chronic sinusitis, as due to Gulf War service and exposures therein, is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the probative, competent evidence demonstrates that the Veteran’s tinnitus is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2009 to February 2010, to include service in Southwest Asia, as well as a period of active duty for training (ACDUTRA) from August 2005 to March 2006. These matters come before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. The Board notes that additional VA medical records were associated with the claims file since the most recent statement of the case. However, in May 2017, the Veteran’s representative submitted a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ) of “any and all additional evidence submitted subsequent to the issuance of his statement of the case.” Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Entitlement to Service Connection for Tinnitus The Veteran asserts that he has tinnitus due to exposure to acoustic trauma during his military service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system, which includes tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, 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 C.F.R. §§ 3.307(a)(3), 3.309(a). It is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As it pertains to a current diagnosis, the Veteran has reported experiencing “buzzing” in his ears during service that has continued since. The Board finds that such lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability of tinnitus for service connection purposes. With respect to an in-service injury, event, or illness, service treatment records are negative for any complaints of, treatment for, or diagnosis of tinnitus. However, the Veteran testified during his hearing before the undersigned that the buzzing in his ears first began after exposure to various acoustic trauma in service, including aircraft noise, firearm and artillery fire, and generator noise. The Veteran’s description of this noise exposure is consistent with his circumstances of service on base in Iraq as a Common Ground Station Operator. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Accordingly, the Board finds the Veteran has established an in-service event for service connection purposes. During the July 2015 VA examination, the Veteran asserted bilateral tinnitus several years prior. The examiner opined that, without evidence of a noise injury in service, it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. As the Board has previously noted, however, the Veteran has argued that the buzzing in his ears began after exposure to various noises in service. The examination report, however, contains no indication that a statement from the Veteran regarding the circumstances surrounding the onset of his tinnitus was considered in the examiner’s final opinion. Conversely, the Board affords the Veteran’s own statements – as well as the statements of the Veteran’s family members that are of record – significant probative weight. As noted previously, during his Travel Board hearing the Veteran reported buzzing in the ears which began during service after exposure to aircraft and generator noise, as well as firearms and artillery fire. The Board finds that the Veteran is competent to report the symptoms of his tinnitus, and that this testimony that the ringing in the Veteran’s ears began after being exposed to loud noises in service, and that it has continued since, is credible. See Layno, 6 Vet. App. at 469. The Board finds that the Veteran has established continuity of symptomatology of tinnitus. As noted above, tinnitus is a chronic disease for purposes of 38 C.F.R. § 3.309(a). See Fountain, 27 Vet. App. 258. It is also noted that the provisions of 38 C.F.R. § 3.303(b) could be applied in this case as the Veteran has competently and credibly asserted that he had tinnitus, a chronic disease, in service and at present. See 38 C.F.R. § 3.309(b) (If a chronic disease is present during service and manifests at any later date, service connection is warranted absent evidence that the disease is clearly attributable to intercurrent causes). Given the Veteran’s in-service noise exposure and reports that he first experienced tinnitus in service, and resolving all reasonable doubt in his favor, the Board finds the probative, competent evidence demonstrates that the Veteran’s current tinnitus at least as likely as not had its onset during active duty. Thus, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s claim of entitlement to service connection for a respiratory disorder, to include allergic rhinitis and/or chronic sinusitis, must be remanded for an additional VA examination and opinion. The record reflects that the Veteran has a history of both allergic rhinitis and chronic sinusitis. He asserts that these conditions are related to exposure to environmental toxins – such as oil fires, burn pits, and sandstorms – while deployed to Iraq in 2009. The Veteran stated during his hearing testimony that he had a pulmonary workup immediately following his deployment where allergic rhinitis was first diagnosed. At a VA Gulf War VA examination in July 2015, the examiner indicated that rhinitis was noted in VA treatment records in both December 2010 and March 2011, and deferred to the RO as to whether these constituted a diagnosis of this disability within one year since discharge. While the pulmonary workup the Veteran refers to is indeed in the Veteran’s VA treatment notes, the diagnoses of allergic rhinitis later that year and referred to by the July 2015 VA examiner does not appear to be of record. The Board also notes that additional examinations, both VA and private, were recently added to the record. In September 2017, the Veteran’s physician opined in a private disability benefits questionnaire (DBQ) that all of his respiratory conditions were more likely than not related to his exposure to multiple environmental hazards in service. However, no rationale for the private physician’s opinion was provided. Further, while a VA examiner in August 2018 did note the Veteran’s allergic rhinitis, no etiological opinion was provided, despite noting that his STRs show some evidence of being treated with nasal steroids and antihistamines. The Board notes here that the record also reflects treatment for an upper respiratory infection and pharyngitis in 2006 during his period of ACDUTRA. As to the Veteran’s history of chronic sinusitis, the VA examiner provided a negative etiological opinion, noting that an endoscopic examination did not support a diagnosis of sinusitis and a CT scan revealed no evidence of changes to support that any sinus surgery ever took place. The Board notes, however, that additional private treatment records added to the Veteran’s claims file since the August 2018 VA examination do confirm that the Veteran had a sinus dilation, turbinate reduction, and nasal swell body lesion reduction in November 2017. Thus, the matter must be remanded to obtain an additional VA examination and opinion to determine the nature and etiology of any and all upper respiratory conditions, to include as due to exposure to environmental toxins in Southwest Asia. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claim, to include treatment records related to any diagnosis of a respiratory condition in the year following his discharge from active service in February 2010. All identified VA records should be added to the claims file. The Board notes that, while a VA examiner in July 2015 indicated VA treatment and diagnoses of allergic rhinitis during this period after a pulmonary evaluation in 2010, the diagnoses themselves do not appear to be of record. All other properly identified records, including private treatment records, should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination with an appropriate physician to determine the nature and the etiology of any chronic respiratory system disorder, to include as due to Southwest Asia service and exposures therein. All indicated tests and studies are to be performed and a detailed history should be obtained from the Veteran. Following review of the claims file and examination of the Veteran, the physician should provide an opinion regarding the following: a) Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed respiratory disorder – to include, but not limited to, allergic rhinitis, chronic sinusitis, and any residuals of sinusitis post-surgical intervention in November 2017 – began during service or is otherwise related to service. The examiner should address the Veteran’s assertions that his respiratory problems began after exposure to environmental toxins in Southwest Asia – including oil fires, burn pits, and sandstorms – during his period of active duty from 2009 to 2010. The examiner should also address the Veteran’s in-service treatment for upper respiratory infections and pharyngitis during his first period of active duty for training, in February and March 2006. b) If the answer to a) is in the positive, that it is at least as likely as not that any diagnosed respiratory system disorder began during service or is otherwise related to service and is therefore “service-connected,” the examiner should provide an opinion as to its relationship to any other diagnosed respiratory disorder, to include whether any other diagnosed respiratory disorder was i) caused or ii) aggravated (i.e. worsened beyond its normal progression) by the service-connected disorder. c) The examiner is further asked to specifically address if the Veteran has any objective signs of a respiratory disorder that are not accounted for by any diagnosed condition. If so, please list each sign/symptom and address the level of impairment and whether it is at least as likely as not that any sign/symptom is related to an undiagnosed illness or related to a medically unexplained chronic multi-symptom illness. (Continued on the next page) A complete rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel