Citation Nr: 18150248 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-32 196A DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a bowel impairment disorder, to include as secondary to service-connected lumbar spine disorder, is remanded. Entitlement to service connection for left leg sciatica is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent for right leg sciatica is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision, on the record at his June 2018 hearing, the Veteran withdrew his appeal regarding his hearing loss claim. 2. The Veteran’s tinnitus had its onset in service. 3. Anxiety disorder not otherwise specified (NOS) and mood disorder with major depressive disorder features are proximately due to service-connected lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the claim of entitlement for service connection for bilateral hearing loss are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to secondary service connection for anxiety disorder NOS and mood disorder with major depressive disorder features are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2005 to March 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 decision). 1. Entitlement to service connection for bilateral hearing loss is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, at his June 2018 Board hearing, advised that he wished to withdraw his appeal regarding service connection for bilateral hearing loss. See June 2018 Travel Board hearing transcript at 2. Accordingly, he has withdrawn the appeal as to this issue and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding his hearing loss claim and it is dismissed. 2. Entitlement to service connection for tinnitus. The Board finds that service connection for tinnitus is warranted. The Veteran has reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during his active duty service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also June 2018 Travel Board hearing. The Veteran has reported in-service acoustic trauma secondary to fuel truck noise, as well as gun range exercises without hearing protection. See June 2018 Travel Board hearing. The Board finds his account of in-service acoustic trauma during active duty consistent with the circumstances of his service and military occupational specialty. 38 U.S.C. § 1154(a). Even though the Veteran’s service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303. The Board notes the negative September 2011 VA examiner’s unfavorable opinion, but that opinion is of no probative value, as it is based solely on the absence of a diagnosis in the Veteran’s service treatment records and does not consider his competent lay statements. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s primary theory of entitlement is that he is entitled to service connection for an acquired psychiatric disorder as secondary to his service-connected lumbar spine disorder. See June 2018 Travel Board hearing. The evidence includes a January 2011 C.C., Ph.D. psychological evaluation report that diagnosed the Veteran with mood disorder with major depressive disorder features, and generalized anxiety disorder, not otherwise specified (NOS). After clinical interview of the Veteran, it was opined the Veteran’s psychiatric disorders were due to the medical conditions he acquired while serving and continue to have a significant impact in his life. Significantly, there is no opinion to the contrary. Accordingly, the Board finds that secondary service connection is warranted for anxiety disorder NOS and mood disorder with major depressive disorder features. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder. In January 2011 C.C., Ph.D., diagnosed the Veteran with mood disorder with major depressive disorder features, and generalized anxiety disorder, not otherwise specified (NOS). However, the examiner did not review the Veteran’s claims folder, and it is unclear if the diagnoses conform to regulatory requirements. 38 C.F.R. § 4.125(a). Thus, on remand, an examination is needed. 4. Entitlement to service connection for a bowel impairment disorder, to include as secondary to service-connected lumbar spine disorder is remanded. 5. Entitlement to service connection for left leg sciatica is remanded. 6. Entitlement to a rating in excess of 20 percent for a lumbar spine degenerative disc disease is remanded. 7. Entitlement to an initial rating in excess of 10 percent for right leg sciatica is remanded. At the June 2018 hearing, the Veteran stated that his lumbar spine and right leg sciatica disabilities have worsened in severity since the most recent October 2010 VA examinations. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his lumbar spine and right leg sciatica disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Veteran asserts that he suffers from left leg sciatica, a bilateral upper extremity neurologic disability and a bowel impairment disorder secondary to his service-connected lumbar spine disability. Such matters should be addressed on examination. Any outstanding treatment records should also be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this remand must be made available to the examiner for review. After examining the Veteran and reviewing the record, the examiner is asked to address the following: (a) Please identify all current psychiatric diagnoses. If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis. (b) For each diagnosed psychiatric disability, indicate whether it is at least as likely as not (probability of 50 percent or greater) that such disability: (1) had its onset in service or is otherwise related to service, to include as a result of reported depression in October 2006; (2) is proximately due to his service-connected disabilities; or (3) has been aggravated (worsened beyond natural progression) by his service-connected disabilities. All opinions should be accompanied by a clear rationale. If the examiner cannot answer without resorting to speculation, he or she should explain why it would be speculative to respond. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his lumbar spine disability and associated right leg sciatica. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a) The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. (c) The examiner should also identify any neurologic impairment related to his lumbar spine disability, to specifically include the nature and severity of his right leg sciatica and any associated bladder or upper extremity neurological impairment identified. (d) The examiner should specifically indicate whether a diagnosis of a left leg neurological disability or bowel disability is warranted, and for each disability so diagnosed opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability: (1) had its onset in service or is otherwise related to service; (2) is proximately due to his service-connected lumbar spine disability; or (3) has been aggravated (worsened beyond natural progression) by his service-connected lumbar spine disability. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel