Citation Nr: 18150763 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 10-00 850 DATE: November 15, 2018 ORDER Service connection for tinnitus is granted. Service connection for a lung condition is denied. Service connection for residuals, trauma to scrotum, is denied. Service connection for residuals, laceration to the left forehead, is denied. Service connection for neck pain is denied. Service connection for blurred vision is denied. Service connection for trouble sleeping is denied. REMANDED The issue of service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, tinnitus was etiologically related to his period of active service. 2. The preponderance of the evidence is against finding that the Veteran had a lung condition, residuals of a forehead laceration, or residuals of trauma to the scrotum due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The preponderance of the evidence of record is against finding that the Veteran had at any time during the appeal, current diagnoses associated with neck pain, blurred vision, or a sleep disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.385. 2. The criteria for service connection for a lung condition have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for residuals, trauma to scrotum, have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for residuals, laceration to the left forehead, have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for neck pain have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for blurred vision have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for trouble sleeping have not been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to August 1986. He died in late 2015. The Appellant has been substituted as the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims file was subsequently transferred to the RO in Winston-Salem, North Carolina. In July 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for tinnitus In addition to direct service connection, service connection may be established under 38 C.F.R. § 3.303 (b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Tinnitus (an organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore, 38 C.F.R. § 3.303 (b) is applicable. Service connection may also be established for tinnitus based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). In August 2009, the Veteran stated he had ringing in his ears since his military service. In his January 2010 substantive appeal form, the Veteran reported that he worked on a flight line during service, which caused tinnitus. At the July 2015 hearing, the Veteran testified that as an aviation ordnanceman (AO), he was exposed to aircraft noise that caused a ringing in his ears. Military personnel records list the Veteran’s specialty as AO, and it was noted he attended basic aviation training class and AO school. Service treatment records show the Veteran never complained of or was treated for any ear condition. VA and private medical records are also silent regarding reports of tinnitus. The Veteran was not afforded a VA audiological examination prior to his death. However, the Veteran was competent to report symptoms such as ringing or buzzing in his ears, as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Veteran was competent to identify a disorder such as tinnitus for diagnostic purposes, and to report that it was incurred in and existed since service. 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Upon resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a lung condition The Veteran stated in August 2009 that he had a lung condition caused by the dry environment in California, where he was stationed during military service. In his January 2010 substantive appeal form, the Veteran stated he had a lung condition due to exposure to aircraft fuels. At the hearing, he testified that he had occasional shortness of breath, and a chronic cough that began in August 1986 that he believed was caused by exposure to fuel and exhaust fumes. He reported that lung nodules were discovered in 2005, but that he did not have a diagnosis for a lung condition. While the Veteran had lung nodules, the preponderance of the evidence weighs against finding that the Veteran had a lung condition diagnosis that began during service or was otherwise related to an in-service injury, event, or disease. 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), (d). Service treatment records are silent regarding a lung condition. Private medical records indicate that in January 2005, a computed tomography (CT) scan showed the Veteran had small non-calcified nodules. An April 2005 CT scan showed the Veteran had stable bilateral pulmonary nodules. An X-ray of the chest from April 2007 revealed no evidence of an active disease of the lungs. The physicians who ordered the images and scans did not provide an opinion regarding the etiology of the nodules, or indicate that they were related to the Veteran’s military service. Aside from the CT scan reports regarding the lung nodules, the claims file does not contain any additional records showing the Veteran was diagnosed with or treated for a lung condition. While the Veteran was competent to report having experienced symptoms of a chronic cough and occasional shortness of breath since service, he was not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a lung condition. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the claim of service connection for a lung condition is denied. 3. Entitlement to service connection for residuals of trauma to scrotum, and residuals of a forehead laceration The Veteran contended he had residuals associated with in-service injuries to his scrotum and his forehead. The Veteran testified that during service, he was kicked in the scrotum and it caused significant swelling. At the time of the hearing, he reported the swelling had dissipated, but pain had persisted since service. He also reported that he had a cyst on the left testicle, but did not have any penile dysfunction. Regarding his forehead laceration, the Veteran testified that in January 1986 he struck his forehead while disassembling an aircraft. He fell backwards, striking his head again, and fainted. The Veteran reported having headaches since the head injury. While the Veteran experienced in-service injuries to his scrotum and forehead, the preponderance of the evidence weighs against finding that the Veteran had any current diagnoses or residual disabilities etiologically related to those in-service injuries. 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), (d). In the June 2008 rating decision, the RO specifically noted that January 1986 and May 1986 service treatment records show the Veteran was treated for a one-centimeter laceration to the forehead, and groin pain due to scrotum swelling. As noted above, those service records are no longer in the claims file. A review of the remaining service treatment records indicates the Veteran had no additional complaints of or treatment regarding his forehead and scrotum injuries. A March 2001 radiology report shows the Veteran had a left testicular simple cyst. The claims file does not contain any additional medical records showing complaints of or treatment for a scrotum or penile injury. CT scans of the Veteran’s brain and sinuses were taken in January 2005 following reports of headaches and dizziness. The brain scan was negative for any findings, but the sinuses scan revealed mild chronic sinusitis. In February 2005, the Veteran reported that his headaches had improved. He complained again of frequent headaches in April 2007 and January 2008. His physician determined the Veteran’s headaches were likely secondary to sinusitis. While the Veteran believed his headaches and scrotum pain were related to in-service injuries, he was not competent to provide nexus opinions in this case. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). The medical records show the Veteran’s headaches were likely caused by sinusitis, and there was no indication the Veteran’s testicular cyst was a result of the in-service injury to the scrotum. Accordingly, the claims of service connection for residuals of a forehead laceration and trauma to the scrotum are denied. 4. Entitlement to service connection for neck pain, blurred vision, and trouble sleeping The Veteran contended that the January 1986 in-service head injury resulted in a neck injury and occasional blurred vision in the right eye. He also stated he had trouble sleeping due to depression and the residuals of the head injury. At the hearing, the Veteran testified that when he injured his forehead during service, a fellow soldier picked him up and carried him to an aircraft hangar. He believed that being moved prior to having a cervical collar in place caused an injury to his cervical spine. The Veteran stated he had constant left side neck pain since January 1986. However, he also reported that he was in a motor vehicle accident in 2010 that exacerbated his neck pain, but he was not given a clinical diagnosis for a neck condition. The Veteran testified that since his in-service head injury, he experienced intermittent blurry vision in the right eye. The Veteran did not offer testimony regarding a sleep disorder. The Board concludes that the Veteran did not have current diagnoses of a neck condition, vision impairment, or sleep disorder and did not have them at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Service treatment records show the Veteran was not noted to have a neck injury, vision impairment, or a sleep disorder. Private medical records from April 2007 and January 2008 indicate the Veteran complained of neck pain, as well as loss of vision in the right eye associated with frequent headaches. An X-ray of the cervical spine was negative for fracture or dislocation. The Veteran’s physicians provided diagnoses for a neck or eye condition, but there is no indication in the medical records that the Veteran’s current symptoms were associated with any in-service injury, event or disease. Additionally, there is no evidence within the medical records that the Veteran was ever treated for or diagnosed with a sleep disorder. While the Veteran believed he had current diagnoses associated with neck pain, blurred vision, and a sleep disorder, he was not competent to provide diagnoses in this case. As the preponderance of the evidence is against finding the Veteran was entitled to service connection for neck pain, blurred vision, and trouble sleeping, the claims must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The claim of service connection for an acquired psychiatric disorder is remanded to obtain a VA medical opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA medical records and associate them with the claims file. 2. Provide the claims file, including a copy of this Remand, to a VA mental health examiner and request the examiner determine the following: (a.) Identify all acquired psychiatric disorders; (b.) For any identified acquired psychiatric disorder, determine whether it was etiologically related to the Veteran’s military service. 3. In addition to any records that are generated because of this remand, the VA examiner’s attention is drawn to the following: (a.) December 1983 Service Treatment Records (STRs) – Veteran’s Report of Medical Examination was normal (b.) June 1986 STRs – Veteran referred for a psychological evaluation; diagnosed with passive aggressive personality disorder; was not recommended for advancement or retention (c.) July 1986 STRs – Veteran was reprimanded and advised to control his temper (d.) October 2003 Private Medical Records (PMRs) – Veteran complained of depression; was prescribed Zoloft (e.) August 2009 Lay Statement – Veteran’s wife described the Veteran as having mood swings, angry outbursts, and emotional moments (f.) June 2015 PMRs – Veteran’s private physician stated the Veteran was a patient since 2005, and has been treated with Zoloft for psychiatric symptoms that have existed since his military service (g.) July 2015 Hearing Transcript 4. Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing all indicated development, readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for appellate disposition. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel