Citation Nr: 18153641 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-01 953 DATE: November 29, 2018 ORDER Service connection for tinnitus is granted. Service connection for PTSD is granted. REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a back disorder, to include as secondary to a left ankle disorder, is remanded. Entitlement to service connection for a left hip disorder, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for left sciatica, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his currently diagnosed tinnitus had its onset in service. 2. Resolving all doubt in the Veteran’s favor, his currently diagnosed PTSD is related to his in-service combat stressors. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1970. He is the recipient of numerous awards and decorations, to include the Combat Air Crew Insignia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran, through his representative, submitted additional evidence in support of his claims following the issuance of the October 2015 statement of the case. 38 U.S.C. § 7105(e)(1). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the veteran was engaged in combat with the enemy. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). The record reflects that the Veteran is in receipt of the Combat Air Crew Insignia. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus that began during his military service. In this regard, he testified that he first became aware of the ringing in his ears after he returned to the United States following his service in Vietnam in approximately December 1968, i.e., after being removed from such a noisy environment, and such has continued to the present time. Consequently, the Veteran claims that service connection for tinnitus is warranted. As an initial matter, the Board notes that the Veteran is competent to report the presence of tinnitus as such disorder is capable of lay observation, and such diagnosis is confirmed by his VA treatment records and at a January 2011 VA examination. Furthermore, while his service treatment records are negative for any complaints, treatment, or diagnosis referable to tinnitus, he is competent to report exposure to acoustic trauma, which is consistent with his combat service, and the presence of tinnitus soon thereafter. The Board notes that the January 2011 VA examiner opined that the Veteran’s tinnitus was not caused by or related to his in-service noise exposure. In this regard, she based such determination on the fact that tinnitus due to noise exposure or acoustic trauma was known to have a noticeable onset immediately or soon following the incident, and the Veteran was non-specific with the onset and could not make an association. However, at his August 2017 Board hearing, the Veteran was very specific as to the fact that he first noticed his tinnitus upon his return to the United States from Vietnam in approximately December 1968. Moreover, such statement is consistent with the remainder of the evidence of record, to include VA treatment records and his reports at the January 2011 VA examination, that his tinnitus was long-standing. Consequently, based on the Veteran’s competent testimony, which the Board has no reason to doubt, the Board resolves all doubt in his favor and finds that his tinnitus had its onset during his military service. Therefore, service connection for such disorder is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he currently has an acquired psychiatric disorder, to include PTSD, due to his in-service combat experience as a gunner on helicopters in Vietnam. As such, he contends that service connection for such disorder is warranted. As an initial matter, the Board notes that the Veteran does not have a current diagnosis of any acquired psychiatric disorder other than PTSD. Furthermore, while there is some conflict in the record as to the validity of such diagnosis, which will be discussed below, the Board resolves all doubt in the Veteran’s favor and finds that he does have a diagnosis of PTSD. Furthermore, in light of his receipt of the Combat Air Crew Insignia due to his combat service in Vietnam, his stressors related to his combat experiences are acknowledged. In August 2010, VA treatment records reflect that the Veteran presented with psychiatric complaints and an initial impression of PTSD was noted. The following month, he received a psychiatric evaluation; however, the VA psychiatrist found that the Veteran did not meet the diagnostic criteria for a diagnosis of any psychiatric disorder at the present time. In this regard, she noted that his history was suggestive of bipolar disorder, but observed that he had subsyndromal symptoms of PTSD. Thereafter, the Veteran underwent a VA examination in February 2011 in connection with his claim, at which time the examiner found that he did not meet the diagnostic criteria for PTSD. However, in December 2015, a PhD.-level psychologist, Dr. L.W., interviewed the Veteran, which included his report of combat duty as a helicopter machine gunner in Vietnam from 1967 to 1968, conducted a mental status examination, and rendered a diagnosis of PTSD with delayed expression based on the relevant diagnostic criteria. She further opined that it was more likely than not that the Veteran’s PTSD was connected to his military service. As both the February 2011 VA examiner and Dr. L.W. are competent medical professionals and considered all relevant facts, their opinions are entitled to equal probative weight. Therefore, as the evidence is in relative equipoise, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed PTSD is related to his in-service combat stressors. Consequently, service connection for such disorder is warranted. REASONS FOR REMAND 3. Entitlement to service connection for a left ankle disorder. The Veteran contends that he currently has a left ankle disorder due to his military service. In this regard, at the August 2017 Board hearing, he testified that, prior to service in 1963, he broke his left ankle during football practice and received a cast that was removed in early 1964. He explained that he had no further problems with his left ankle, continued to play high school sports throughout his senior year, and had no difficulty with the ankle upon entry to service. Rather, he reported that his left ankle trouble began in 1967 during infantry training prior to his deployment to Vietnam. In this regard, the Veteran indicated that he had a severe left ankle sprain during a training exercise and, due to continuing ankle pain, continued to seek treatment. While deployed in Vietnam, the Veteran reported that his left ankle symptoms were further aggravated due to his service aboard helicopters when he was unable to stabilize himself and would fall backwards during flight. He further testified that he continued to have problems with his left ankle during and since service, but would oftentimes self-medicate. As such, he contends that service connection for a left ankle disorder is warranted. The Veteran’s service treatment records reflect that he reported foot trouble on an April 1966 Report of Medical History in connection with his enlistment examination. Such record further reflects that the examiner indicated that the Veteran fractured his left ankle in 1965. August and July 1966, and October 1967 Reports of Medical History reveal that he reported foot trouble as he broke his ankle when he was eighteen years old. Here, the examiner noted that such was without sequelae. A March 1967 record reveals that the Veteran fractured his left ankle three years prior, and he now complained of difficulty. Such record further reveals a provisional diagnosis of arthritic changes secondary to old injury. An April 1967 record indicates that he received eight treatments of active and resistive ankle range of motion exercises. An additional April 1967 record reflects that the Veteran underwent a left ankle X-ray, which resulted in negative findings. An October 1967 record notes that he fractured his ankle three years prior and had been come in frequently complaining of left ankle pain. Such record further notes a provisional diagnosis of traumatic arthritis. Records dated in September and October 1967 indicate that the Veteran had follow-ups for his left ankle. A November 1967 record reveals that he suffered a sprain ankle. The remainder of the service treatment records, to include his March 1970 separation examination, was negative for any complaints, treatment, or diagnosis referable to the Veteran’s left ankle; however, the Board also accepts his report of being jostled while serving in a helicopter in Vietnam as such is consistent with the nature of his combat service. In light of the foregoing, the Veteran was afforded a VA examination in September 2011, at which time the examiner noted diagnoses of left ankle fracture (prior to entrance to military service) and left ankle strain and pain from 1967. Here, the examiner opined that the Veteran’s left ankle disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner reported that the medical data showed that the Veteran historically fractured his left ankle in 1964/1965 prior to his entrance into service and no complications were noted on his entrance examination. The examiner further reported that the Veteran did not sustain another left ankle fracture in service per medical data, and his separation examination was silent for any ankle disorder. The September 2011 VA examiner further opined that the Veteran’s left ankle disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As rationale for the opinion, he reported that the Veteran historically fractured his left ankle in 1964/1965 per medical data. The examiner further reported that the Veteran did not sustain another left ankle fracture in service, and his entrance examination noted no complications of the left ankle fracture with normal range of motion. He indicated that the Veteran’s service treatment records showed numerous appointments for left ankle pain without fracture in 1967, which required physical therapy, and the Veteran was discharged from service without mention of any ankle impediment. Here, the examiner noted that it was not possible to hypothesize, predict, guess, or speculate as to whether the Veteran’s left ankle pain in 1967, which was not present at his discharge in 1970, was in any way related to his prior left ankle fracture that had healed per X-ray data. However, and August 2017 private treatment record reflect an assessment of left ankle arthritis, which was noted on November 2016 imaging studies. Such record further reflects that the Veteran suffered a twisting injury while in service during the 1960s and old records indicated that the Veteran’s ankle injury was service related. An additional August 2017 private treatment record notes that the Veteran had left ankle laxity, which was connected to the Veteran’s military service as his ankle was unstable. However, no rationale for such opinions were provided. Therefore, in light of the newly received evidence that suggests a possible relationship between a new diagnosis of left ankle arthritis and the Veteran’s military service, the Board finds that he should be afforded another VA examination so as to determine the nature and etiology of his left ankle disorder. 4. Entitlement to service connection for a back disorder, to include as secondary to a left ankle disorder. The Veteran contends that he currently has a back disorder due to his military service. In this regard, at the August 2017 Board hearing, he testified that his back trouble began in 1968 following the many instances that he was unable to stabilize himself and would fall backwards on helicopters while serving as a gunner during combat operations in Vietnam. He further noted that he continued to have back issues following his discharge from service. As such, he contends that service connection for a back disorder is warranted. The Veteran’s service treatment records reflect that he was seen for a lumbar strain in September 1968. The remainder of the service treatment records, to include his March 1970 separation examination, was negative for any complaints, treatment, or diagnosis referable to the Veteran’s back; however, the Board also accepts his report of being jostled while serving in a helicopter in Vietnam as such is consistent with the nature of his combat service. The Veteran’s post-service treatment reflect a current diagnosis of a back disorder, to include lumbar degenerative disc disease and spondylosilisthesis. Additionally, he underwent a VA examination in September 2011, at which time the examiner reported diagnoses of motor vehicle accident with low back pain in the 1970s, lumbar disc disease with sciatica of the lower extremity from 2009, and lumbar strain, resolved from 1968. However, he opined that the Veteran’s back disorder was less likely than no incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he indicated that medical data supported acute low back pain in 2009 due to lifting a heavy object, and noted that the Veteran had not seen a physician since 1992. The examiner further indicated that the Veteran did not have difficulty with his lower back until 2009, and he was discharged from service in 1972. He also noted that medical data reflected a motor vehicle accident with a back injury in the 1970s, at which time the Veteran declined surgery and got better in two years. The examiner further reported that the Veteran’s service treatment records showed only one appointment for a lumbar strain in 1968 and his separation examination was silent for any back disorder. However, at the Veteran’s August 2017 Board hearing, he provided additional information regarding his post-service incidents, which was not considered by the September 2011 VA examiner. Specifically, he reported that, with respect to his motor vehicle accident, he was rear-ended at a toll booth and did not seek treatment. He further indicated that he suffered a whiplash injury, but no injury to his lower back. The Veteran further explained that, at the time of his motor vehicle accident, he was already experiencing back pain from service. Additionally, he indicated that, with respect to the heavy lifting injury in 2009, after picking up a heavy object to place into a moving truck, he felt a pull on his right side in the area of his hip and lower back. He further indicated that, after six months of occasional pain in his leg, he saw a chiropractor who he believed completely cured him. Furthermore, an August 2017 treatment record notes the Veteran’s report that he strained his back while in service operating a machine gun on a helicopter and his back pain was aggravated by his unbalanced gait due to an ankle injury. The physician provided an impression that the Veteran’s history and examination was consistent with a chronic soft tissue injury that was likely partially service related. An additional August 2017 private treatment record indicates that the Veteran’s back disorder had a connection to his military service as it was partially due to firing a machine gun on a helicopter, and wear and tear. However, no rationale for such opinions were provided. Therefore, in light of the newly received evidence that sheds additional light on the nature of the Veteran’s post-service back injuries and suggests a possible relationship between his back disorder and service, the Board finds that an addendum opinion addressing the etiology of such disorder is necessary to decide the claim. Furthermore, in light of the newly raised contention that his back disorder is related to his left ankle disorder, he should be provided proper notice as to the information and evidence necessary to substantiate such secondary aspect of his claim, and an opinion addressing such possible relationship should likewise be obtained. 5. Entitlement to service connection for a left hip disorder, claimed as secondary to a back disorder. 6. Entitlement to service connection for left sciatica, claimed as secondary to a back disorder. The Veteran contends that he has a left hip disorder and left sciatica that is caused or aggravated by his back disorder. In this regard, a July 2010 VA treatment records notes an assessment of lumbar radiculopathy and an August 2017 private treatment record notes an assessment of chronic lumbar radiculopathy. Further, at his August 2017 Board hearing, the Veteran testified that his back disorder resulted in radiating pain and muscle spasms down his left leg, which caused his left hip to be pulled out of alignment. Consequently, such claims are inextricably intertwined with the claim for service connection for a back disorder that is remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, such claims must likewise be remanded. Furthermore, in light of the newly raised theory of entitlement, the Veteran should be provided proper notice as to the information and evidence necessary to substantiate such secondary aspect of his claim, and an opinion addressing such possible relationship should likewise be obtained. 7. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss that gradually began after his military service, which he became award of in the late 1970s. While his service treatment records reflect that his hearing was within normal limits bilaterally, his in-service exposure to acoustic trauma is acknowledged in light of his combat service. As such, the Veteran was afforded a VA audiological examination in January 2011, at which time the examiner found that he did not have a bilateral hearing loss disability for VA purposes. However, during the August 2017 Board hearing, the Veteran testified that he continued to experience hearing loss, and had not underwent audiometric testing since such examination. Consequently, as such suggests that the Veteran’s hearing acuity may have decreased and may now have a bilateral hearing loss disability as defined by VA, a remand is necessary in order to schedule him for a new VA examination to determine if he has a current hearing loss disability, and if so, whether such is related to his in-service noise exposure. The matters are REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claims for service connection for a back disorder, a left hip disorder, and left sciatica on a secondary basis. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed left ankle disorder. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner should identify any left ankle disorders the Veteran has had since shortly before, at the time of, or during the pendency of the August 2011 claim (even if currently asymptomatic or resolved), to include arthritis. (B) For each disability of the left ankle, the examiner should offer an opinion as to whether there is clear and unmistakable evidence that the disorder pre-existed service. In this regard, the examiner should consider the fact that the Veteran reported a pre-service left ankle fracture, but such was noted to be without sequalae. (i) If there is clear and unmistakable evidence that the disorder(s) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that any current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service, to include the Veteran’s in-service treatment for left ankle complaints and/or the nature of his military duties, to include being jostled while serving in a helicopter during combat operations in Vietnam. A rationale for any opinion offered should be provided. 3. Return the record to the VA examiner who conducted the September 2011 VA examination referable to the Veteran’s back disorder. The record and a copy of this Remand must be made available to the examiner. If the September 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion on the following: (A) Identify all back disorders. (B) For each back disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to his military service, to include the Veteran’s in-service treatment for back complaints September 1968 and/or the nature of his military duties, to include being jostled while serving in a helicopter during combat operations in Vietnam? In rendering such opinion, the examiner should consider, and discuss, the Veteran’s August 2017 Board hearing testimony in which he clarified that his post-service incidents did not result in back injuries (as described above). (C) For each back disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran’s left ankle disorder, to include as a result of an altered gait. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. (D) If the Veteran’s back disorder is related to his military service, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that he has a current left hip disorder and/or left sciatica that is caused or aggravated by such disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 4. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed bilateral hearing loss. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner should indicate whether the Veteran has a diagnosis of bilateral hearing loss as defined by VA regulations. (B) If so, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset during service, is otherwise related to his military service, to include his acknowledged in-service noise exposure, or manifested within one year of his service discharge in March 1970, i.e., by March 1971? The examiner should take into consideration all of the evidence of record, to include the lay statements from the Veteran concerning his in-service exposure to acoustic trauma during combat. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel