Citation Nr: 18150934 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-41 648 DATE: November 19, 2018 ORDER Service connection for tinnitus is denied. REMANDED Entitlement to service connection for psychiatric disorder, including posttraumatic stress disorder (PTSD), antisocial personality disorder, and adjustment disorder with anxiety, is remanded. Entitlement to an initial compensable rating for osteoarthritis carpal metacarpal joint left thumb, status-post fracture, is remanded. STAYED The claim of entitlement to service connection for bronchitis is deferred. FINDINGS OF FACT The Veteran’s tinnitus was not incurred in service, did not manifest within one year of separation from active service, and is not shown to be otherwise the result of military service, to include any noise exposure therein. CONCLUSIONS OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. As for service connection for bronchitis, the Veteran claims that his condition is due to exposure to asbestos or herbicide agents (Agent Orange) while serving on a ship in the offshore waterways of the Republic of Vietnam. During the pendency of the appeal, on August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: ‘Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains an issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including psychoses and tinnitus (an other organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran contends that his current tinnitus is due to noise exposure during service. Specifically, he asserts that he was exposed to aircraft launches and air powered paint chipper machines without hearing protection. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board reflects that tinnitus is capable of lay diagnosis and therefore the first element of service connection has been met in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, a review of the Veteran’s service treatment records does not demonstrate any complaints of, treatment for, or notation of any tinnitus or ringing in the ears. Rather, the first menton of any complaints of tinnitus is in February 2010. During this private treatment, he reported ringing in his ears for the past 10 to 12 years, in approximately 1998 or 2000, approximately 30 years after service and outside of the applicable presumptive period. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). As the Veteran’s tinnitus is not shown to be present during military service or to have manifested within one year of discharge therefrom, service connection on a presumptive basis must be denied at this time. See 38 C.F.R. §§ 3.307, 3.309; Fountain, supra. The Board reflects that to the extent the Veteran claims that he has had continuous tinnitus symptoms since service, he is competent to do so. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In this case, however, the Board reflects that the Veteran reported in the October 2013 VA audiological examination that his tinnitus began during military service. The Board notes that such statements are internally inconsistent with the Veteran’s previous reports during his private treatment in February 2010, when he was initially seeking treatment for that condition. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Moreover, the Veteran did not report any ringing of the ears or tinnitus at any time during service, as noted in his service treatment records. Consequently, the Board finds that the Veteran’s statements with regard to any manifestation during service, or chronicity or continuity since military service to be not credible in this case. The Board, however, does note that the Veteran contends his tinnitus is the result of military service, and the Board finds that exposure to noise occurred during service. The second element of service connection is therefore met in this case. The Veteran, however, is not competent to render a medical opinion in this case, as he lacks the requisite medical experience or expertise to opine as to the complex medical question as to the etiology of tinnitus as related to any noise exposure during service. See Jandreau, supra. In a November 2013 addendum a VA examiner indicated review of the claims file and opined that the Veteran’s tinnitus is not at least as likely as not related to service, including reported noise exposure. As rationale, the examiner referenced normal audiograms at entrance and separation from service. Based on medical literature, the examiner explained that there are many possible causes of tinnitus, however, tinnitus it often idiopathic. The examiner elaborated that “in the absence of a noise inducted hearing loss and/or documentation of tinnitus in the veteran’s service medical records, the etiology of any reported tinnitus does not appear to be related to acoustic trauma during military service.” The Board finds that such evidence is the most probative evidence of record in this case; such evidence specifically outweighs any probative value with regards to the Veteran’s lay statements regarding onset and continuity of symptomatology in this case, as discussed above. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches). In short, as the evidence does not demonstrate that the Veteran’s tinnitus was incurred in service or within one year of discharge therefrom, or shown to be otherwise the result of military service, to include any noise exposure therein, the Board must deny service connection for tinnitus based on the evidence of record at this time. See 38 C.F.R. § 3.303. REASONS FOR REMAND Respecting the Veteran’s psychiatric claim, the Veteran has claimed that he has PTSD and/or a psychiatric disorder as a result of an personal assault/military sexual trauma during service. The Veteran had claimed that he was The Board reflects that the Veteran underwent a VA psychiatric examination in October 2013, at which time the examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-IV. It does not appear that any additional VA examination has been provided to the Veteran in this case to assess whether he meets the criteria for a diagnosis of PTSD under the DSM-V, as is currently required. See 38 C.F.R. § 3.304(f). Accordingly, the Board finds that a remand is necessary in order to obtain another VA examination that adequate assesses whether the Veteran has PTSD and/or any other psychiatric disorder as a result of his military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Respecting the Veteran’s left thumb claim, the Veteran was afforded a VA examination in September 2016. He reported flare-ups and constant pain that increases when he picks-up items. On examination, pain was noted to cause functional loss. The examiner marked “yes” that pain, weakness, fatigability or incoordination significantly limit functional ability during flare-ups and with repeated use over time but that he could not describe it in terms of range of motion because the Veteran was not evaluated during a flare-up or immediately following repetitive use over time. The Board reflects that the examiner failed to adequate address the additional functional loss related to the Veteran’s left thumb disability related to repeated/repetitive use and flare-ups in this case. Accordingly, a remand is necessary in order to obtain another VA examination that adequately assesses the current severity of the Veteran’s left thumb disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Barr, supra. On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Houston VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found under the DSM-V, to include any PTSD and/or an adjustment disorder with anxiety. If PTSD is diagnosed, the examiner should specify the incident or stressor with which that diagnosis is being made and whether such stressor occurred during military service. For each psychiatric disorder found, to include PTSD and/or an adjustment disorder with anxiety, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any allegations of the military sexual trauma/assault by his roommate while stationed at Fort Bliss. In addressing that alleged incident, the examiner should discuss whether the evidence in the Veteran’s service personnel records and any other evidence of record, particularly the noted evidence-types in 38 C.F.R. § 3.304(f)(5), corroborates the occurrence of sexual assault during service. Finally, the examiner should also discuss the Veteran’s lay statements regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination to determine the current severity of his service-connected left thumb disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner must describe, in detail, all symptomatology of the Veteran’s left thumb disability, including range of motion. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination, or during flare-up, in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. The examiner is further reminded that stating that the Veteran was not observed during flare-up or repeated use is not an adequate rationale for not providing an estimation in additional functional loss without further explanation. The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. An explanation that the flare-up was not observed, standing alone, is not adequate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel