Citation Nr: 18149534 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-40 215 DATE: November 9, 2018 ORDER Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for joint pains is remanded. Entitlement to service connection for recurrent skin disorder is remanded. Entitlement to service connection for anxiety and depression is remanded. FINDING OF FACT The Veteran’s tinnitus is found to have begun during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1992 to August 1996. This matter comes before the Board from a February 2014 rating decision. He filed a notice of disagreement in February 2014; a Statement of the Case (SOC) was issued in October 2015 and he filed a VA Form I-9 in November 2015. In April 2017 the Veteran testified before the undersigned at a hearing held at the RO. He also submitted 205 pages of VA records in April 2017 accompanied by a waiver of AOJ review. Service connection for bilateral tinnitus The Veteran contends that service connection is warranted for tinnitus, which he alleges resulted from exposure to acoustic trauma in service. VA has conceded acoustic trauma exposure in service, per his MOS as an aviation ordnance man. He testified at his April 2017 hearing that the noise included that from shooting weapons as well as working in a warehouse in service. He testified that he started hearing ringing in his ears at the time of exposure, which he said he experienced on the right side and that he continued to experience this since service. He indicated using over the counter ear drops after service. He testified that he spoke with the VA physician regarding his symptoms of tinnitus. Service treatment records (STRs) are negative for any findings or complaints of tinnitus, including on entrance examination and report of medical history dated in August 1991 and audiograms from August 1991 to October 1993. However, he did report having a ruptured eardrum in a December 1992 medical surveillance questionnaire. Post service, the Veteran underwent a VA general medical examination in December 2011, which indicated that there was no ear problem, including no tinnitus. Post service records prior to January 2013 were silent for any issues with tinnitus. In January 2013 he was seen for complaints of ringing in his ears, with a diagnosis of tinnitus made. A February 2013 audiology consult at the VA disclosed complaints of earaches but contains no mention of tinnitus. No consistent results were obtained from audiometric testing. The report of a January 2014 VA audiological examination of the bilateral ears disclosed normal hearing for VA purposes. The Veteran reported the tinnitus as beginning in service but was not related to any specific event. The examiner noted his in-service history of reported noise exposure as an aviation ordnance man. However, it was noted that no reports of tinnitus in the STRs. The examiner gave an opinion that tinnitus was less likely than not caused by or the result of military noise exposure based on there being no evidence of tinnitus in service treatment records and because no hearing loss was incurred while on active duty. The Board concludes that the Veteran has a current diagnosis of tinnitus that as likely as not began in service and is related to in-service acoustic trauma. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). A lay person is particularly competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus “because ringing in the ears is capable of lay observation.” See Charles v. Principi, 16 Vet. App 370, 374-75 (2002); see also Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (noting tinnitus as a symptom of Meniere’s disease). The balance of the lay and medical evidence reflects tinnitus to be a subjective symptom that began shortly in service where he sustained acoustic trauma per the Veteran’s competent and credible reported history. Although no tinnitus was specifically reported during service, the Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). As noted above, the Board finds the lay evidence to be credible as to the onset of tinnitus around the end of service and continuing thereafter, because his statements have been detailed and consistent. The Board therefore finds that the Veteran has tinnitus, and that competent and probative lay evidence indicates that it as likely as not began on or around the time of the established in-service exposure to acoustic trauma and continued thereafter. With this in mind, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a disorder manifested as joint pains, to include fibromyalgia, is remanded. The Veteran alleges service connection is warranted for a disorder manifested as joint pain. The Board notes that a prior unappealed rating of January 2012 denied service connection for disorders of the back and bilateral knees. However, the current appeal is for a claimed disorder manifested as joint pain to include fibromyalgia, with the adjudication to include consideration of presumptions based on service in Southwest Asia. Thus, this matter shall be considered on a de novo basis. At his April 2017 hearing he testified that the same joints that were treated in service, specifically his knees, back and right wrist, still continue to bother him. He believed his current symptoms are due to overall wear and tear from working in a warehouse setting in service, which included lifting bombs that weighed from 60 to 500 pounds. Two men were needed to lift the heaviest bombs. He also testified that physical training put strain on his joints. He testified that he had been diagnosed with a tear of the ligaments of the right knee, as well as a vertebral issue of the back. He also indicated that he had ongoing issues with his wrist. He reported current VA treatment for his joint issues and indicated that he had not been treated at the VA for these problems until 2010, but used over the counter medications instead of going to the doctor. His wife confirmed that she married him around 1992 and he always had joint problems that were self-treated after service, indicating that they lacked medical insurance back then, so he used home remedies such as heat and ice packs and over the counter drugs. The Board notes that the Veteran underwent VA examinations in December 2011 and January 2014, which provided unfavorable opinions as to the etiology of his claimed joint disorders, to include bilateral knees and back addressed in the December 2011 VA examination and a claimed joint disorder to include fibromyalgia due to Southwest Asia service, addressed in the January 2014 VA examination. However, these examinations did not include consideration of this lay history of continued symptoms affecting his joints after service reported in the April 2017 hearing. Rather both examinations attributed his multi-joint disabilities involving his back, bilateral knees and right wrist, to a November 2010 accident when he was struck by a car as a pedestrian. Given the fact that injuries to his knees, back and right hand/wrist, in addition to other joints (hip and jaw), were treated in service, with a history of a football injury in October 1993, a motor vehicle accident in October 1994 and a boxing injury in May 1994, and there is now lay history of continuity of symptoms, another VA medical examination should be obtained that includes examination of his multiple joints and consideration of this lay history as well as the additional VA treatment records obtained in April 2017 after the April 2017 hearing. 2. Entitlement to service connection for a recurrent skin disorder is remanded. The Veteran alleges entitlement to service connection for a skin disorder. The STRs show treatment for rashes in service to include a diagnosed suspected pityriasis rubra in January 1995 and follicular eczema in March 1995. Later in service he was treated for a rash on his breast in May 1995 and on his face in September 1995 diagnosed as T. faciale. . In the RO’s denial of service connection for a skin disorder, it was determined that there was no evidence of a current diagnosed disability. However, a review of the post-service records do show evidence of a skin disorder, with an ongoing prescription of hydrocortisone for skin itching and inflammation/rash since January 2013, when he was also seen for a rash on his face. The hydrocortisone prescription has remained on his active medication list through 2017. Given this history of in-service treatment for skin problems with post service treatment for ongoing skin problems shown, a VA examination should be obtained to determine whether any current skin disorder was incurred in service. 3. Entitlement to service connection for a psychiatric disorder, to include those manifested by anxiety and depression, is remanded. The Veteran alleges that service connection is warranted for a psychiatric disorder, to include generalized anxiety disorder (GAD) and major depressive disorder (MDD). In his February 2014 NOD, he alleged that he was treated for depression in service. At his April 2017 Board hearing he testified that he saw a psychiatrist aboard ship, the U.S.S. Roosevelt in 1993. He indicated that he was required to see the psychiatrist because he was drinking and fighting. At the time, he was drinking to help with symptoms because he was feeling anxious. He reported that he had continued issues with symptoms after service, and started seeking treatment in 2010 for psychiatric problems. His wife testified that she noticed a change in his behavior when he returned from service. She also testified that she noticed his behavior is more “skittish” and paranoid back in 1993. She indicated that he behaved as though somebody was following him, and was more isolated and withdrawn than before service. She testified that he was drinking more frequently in service and he was withdrawn from people. When questioned if his claim encompassed that of PTSD, he was unsure about whether he was exposed to a stressor. He cited being in general quarters during active wartime service, stuck in a magazine that he described as like being enclosed in a coffin. However he is not shown to be claiming PTSD, nor is there evidence showing a diagnosis of PTSD in the record. Thus, this appeal does not involve a claim for PTSD. Service treatment records confirm the Veteran’s testimony that he was sent to a psychiatric evaluation, apparently for some apparent behavioral issues. He is noted to have been tested for alcohol on an unknown date in 1992. Then in March 1992 a recruit evaluation addressing questions regarding substance abuse indicated that he did not meet the criteria for drug or alcohol dependence. He also had a normal mental status examination and denied current suicidal or homicidal ideations. An April 1992 recruit psychiatric evaluation determined that he was psychologically fit for duty, with no current suicidal/homicidal ideations, and no formal thought disorder. However, this examination suggests that he was sent for this examination by a commander, as the Veteran challenged his commander’s statements. His service personnel records disclosed that he was subjected to multiple disciplinary actions for repeated instances of unauthorized absences/AWOLs between February 1994 and October 1995. Further development is necessary. The RO in its February 2014 rating is noted to have denied service connection for psychiatric disorders, to include anxiety and depression, based on there being no diagnosis of or treatment for anxiety or depression or any other psychiatric disorder in the STRs and no treatment for anxiety or depression in the VA records. However, the STRs and personnel records do confirm that the Veteran had been evaluated for a possible psychiatric disorder and had behavioral issues shown in service. Furthermore, VA treatment records show mental health treatment beginning in October 2012 and continuing through 2017 for various psychiatric disorders including multi substance abuse/dependence (including alcohol, marijuana and cocaine). By April 2017 his psychiatric history included that of delusional disorder and substance abuse. Given the evidence of behavioral issues warranting disciplinary action and alcohol testing plus psychiatric evaluation shown in service, and the post service evidence of treatment for psychiatric and substance abuse disorders, a VA examination is warranted to determine whether any diagnosed psychiatric disorder began in service. Additionally, an effort should be made to obtain the most recent VA records of treatment pertinent to all issues being remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2017 to the present. 2. Schedule the Veteran for an examination(s) by an appropriate clinician to determine the nature and etiology of any disability or disabilities impacting multiple joints, including but not limited to those of the left knee, right knee, lumbar spine, and right wrist. The examiner must opine whether any disability/disabilities impacting multiple joints including but not limited to those of the left knee, right knee, lumbar spine, and right wrist is/are at least as likely as not related to an in-service injury, event, or disease, including service in Southwest Asia; overall wear and tear from his service duties involving repetitive heavy lifting; a football injury in October 1993, a motor vehicle accident in October 1994 and a boxing injury in May 1994. Otherwise, the examiner should opine whether any arthritis of any impacted joint was manifested within the first post service year. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. The examiner should specifically state whether the evidence supports a finding of undiagnosed illness or medical unexplained chronic multi-symptom illness. 3. Schedule the Veteran for an examination(s) by an appropriate clinician to determine the nature and etiology of any disorder(s) of the skin. The examiner must opine whether any skin disorder diagnosed is/are at least as likely as not related to an in-service injury, event, or disease, including the skin rashes/other skin findings noted in service. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. The examiner should specifically state whether the evidence supports a finding of undiagnosed illness or medical unexplained chronic multi-symptom illness. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder to include anxiety and depression. Based on a review of the Veteran’s pertinent history and the examination results, the examiner(s) should identify all acquired psychiatric disorders that have been present during the period of the claim. With respect to any acquired psychiatric disorder diagnosed, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service, is otherwise etiologically related to service. Otherwise, the examiner should opine whether any psychiatric disorder manifested by psychosis was manifested within the first post service year. Any opinion offered should include a comprehensive rationale based on sound medical principles and relevant facts of this case. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs