Citation Nr: 18161132 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-27 663 DATE: December 28, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for migraine headaches is denied. Entitlement to service connection of anxiety disorder, NOS for treatment purposes only under Chapter 17 is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for posttraumatic stress disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded.   FINDINGS OF FACT 1. The Veteran has experienced ringing in his ears since military service. 2. The preponderance of the evidence is against finding that the Veteran has migraine headaches due to a disease or injury in service, to include his described exposure to CS gas and gas training areas; the evidence does not demonstrate that the Veteran developed migraine headaches within one year of his separation from military service. 3. The Veteran served during the Persian Gulf War and developed an active mental illness within two years of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for service connection for migraine headaches are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for service connection for anxiety disorder, NOS for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 have been met. 38 U.S.C. §§ 1702, 5103, 5103A, 5107; 38 C.F.R. § 17.109. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to June 1995 with additional service in the Army National Guard of Louisiana from November 2001 to November 2002. In August 2017, the Veteran presented testimonial evidence at a Board hearing held at his local VA regional office before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 1. Entitlement to service connection for tinnitus The Veteran asserts that he suffers from tinnitus related to his exposure to excessive loud noise during military service. Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (Court) has clarified that the list of chronic diseases in 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[] of the nervous system.’” Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). The Veteran testified at the August 2017 Board hearing that he served as a tow missile gunner in the infantry and was exposed to excessive noise on a daily basis, sometimes without or with faulty hearing equipment. In an October 2011 statement, the Veteran reported that his duties involved shooting tow missiles, 25mm cannons, M16 rifles, and M203 grenades. He stated that he first experienced ringing in his ears during service, and that he has had it ever since. He denied hazardous noise exposure outside of the military. The Veteran’s military personnel records indicate that he served on active duty with a military occupational specialty (MOS) of heavy anti-armor weapons infantryman. This particular MOS carries a high probability of excessive noise exposure, and the Veteran’s described exposures are found to be consistent with the circumstances of his military service. The Veteran is competent to report such symptoms as ringing in his ears, because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board concludes that the Veteran’s lay testimony provides an adequate basis on which to grant service connection for tinnitus on a presumptive basis, as a chronic disease first arising to a compensable degree during or within one year of military service with chronicity of symptomatology through the applicable appeal period. See Walker, 708 F.3d at 1336. 2. Entitlement to service connection for migraine headaches. The Veteran contends that he suffers from migraines related to his military service. Specifically, he attributes his migraines to working around “NBC gasses,” and CS gas (tear gas) in training other soldiers in the use of, and in cleaning, gas masks. The claims file contains private and VA treatment records demonstrating a diagnosis of migraine headaches during the relevant appeal period. The Board concludes that, while the Veteran has a current diagnosis of migraine headaches, even assuming without deciding that his reported in-service gas exposures occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of migraine headaches began during or within one year of service or is otherwise related to an in-service injury, event, or disease. As an initial matter, the Veteran testified at the Board hearing that he did not experience headaches during service. His service treatment records further do not demonstrate complaints or treatment for recurrent headaches. While the Veteran testified that he started getting cluster headaches after getting out of the military, he has not asserted that such migraine headaches occurred within the one-year period following his separation from active military service. The only record speaking to the onset date of the migraines recorded the Veteran’s reported history of first experiencing a migraine headache at age 27 or 28, more than five years following his separation from service. Service connection therefore cannot be granted on a presumptive basis per 38 C.F.R. §§ 3.307, 3.309(a). While the Veteran is competent to report his experiences in service and his later headache symptoms, he has not been shown to possess the requisite medical training or knowledge to medically attribute his headaches to the reported gas exposure. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). No other evidence has been presented as to this medical question. Thus, there is no competent evidence of record linking the Veteran’s current migraine headaches to his military service. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for migraine headaches. In the case of McLendon v. Nicholson, the United States Court of Appeals for Veterans Claims held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an “in-service event, injury or disease,” (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service sufficient to trigger the duty to provide an examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. VA’s duty to provide an examination is not limitless, however. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). In this case, the Veteran’s lay assertion that his current migraine headaches are etiologically related to in-service exposure to MBC and CS gas, without the submission of any supportive articles, treatise evidence, medical opinion, or even report from the Veteran that a physician indicated a possible causal relationship, is not found to reach the threshold. As the evidence of record does not demonstrate that the Veteran developed migraine headaches during or within one year of separation from service, and there is no competent evidence etiologically linking the Veteran’s current migraine headache disability and his described in-service chemical exposure, the claim must be denied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, 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). 3. Entitlement to service connection of a mental illness for treatment purposes only under Chapter 17. Under 38 U.S.C. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability develops (1) within two years after discharge or release from active service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702(c) specifies that there is no minimum length of active-duty service required for presumptive eligibility for psychosis and mental illness under this section. The Veteran had active military service between August 1993 and June 1995; he is therefore a veteran of the Persian Gulf War. While the Veteran reports having experienced symptoms of anxiety during his military service, such is not documented in his service treatment or military personnel records. However, the Veteran has consistently reported to his primary care and mental health treatment providers that he experienced culture shock and had significant difficulties functioning when he returned from this period of service, and that his family and ex-girlfriend all recognized this. He reported that he began drinking heavily and taking other people’s anxiety medications when he first came home and was enrolled in college by his parents, reporting to VA psychiatrists that he had several “mental breakdowns” during this time. Finally, an April 2011 primary care note indicates that the Veteran has a history of anxiety disorder, with college onset. Resolving all reasonable doubt in the Veteran’s favor, the Veteran is found to meet the eligibility requirements set forth in 38 U.S.C. § 1702(b) as he (i) is a veteran of the Persian Gulf War who (ii) developed an active mental illness (other than psychosis) within two years after discharge or release from the active military, naval, or air service. Service connection for anxiety disorder, NOS for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 is therefore warranted. Such decision is not meant to communicate a position on the future outcome of the Veteran’s remaining claims of entitlement to service connection for PTSD, anxiety disorder, and depression. REASONS FOR REMAND As an initial matter, although the Veteran is noted to have served in the Army National Guard of Louisiana from November 2001 to April 2002, the only service treatment records pertaining to his National Guard service date from January 2000. On remand, all appropriate steps should be taken to obtain the Veteran’s reserve service treatment records and to associate them with the claims file. As the Board is remanding these claims for further development, action should be taken to associate all of the Veteran’s outstanding VA treatment records with the claims file. 1. Entitlement to service connection for bilateral hearing loss. The Veteran has not yet undergone a VA audiological examination in connection with his claim. The Veteran testified at the Board hearing that he wears hearing aids, and his military personnel records document that his official duties placed him at a high risk for excessive noise exposure. The Veteran was previously scheduled for an examination in 2012 which he did not attend, but at that time, he requested that the examination be rescheduled because he was unable to get off from work. On remand, the Veteran should be scheduled for an examination with respect to this claim. A June 2012 VA audiological consult record documents that the Veteran displayed mild to moderate sensorineural hearing loss between 2000 and 8000 Hz for the right ear and between 4000 and 8000 Hz for the left ear. The numeric results of such audiometric testing do not appear to have been associated with the record. On remand, the Agency of Original Jurisdiction should ensure that any outstanding VA treatment records, including the results of audiometric testing, are associated with the claims file. 2. Entitlement to service connection for a low back disability. The Veteran asserts that he suffers from a low back disability related to his military service. At the August 2017 Board hearing, the Veteran testified that he began going to a private chiropractor shortly after separating from service, and had been going to a chiropractor and doctors for his back ever since. In the course of developing his claim, VA requested that a Dr. F.M. submit all records of the Veteran’s treatment for a low back condition between 1995 and the present (which at that time was September 2011). It appears that the office responded by producing one record from September 1991 and one record from June 2006. There is no indication as to whether this constitutes their entire file for the Veteran. On remand, the Veteran should be asked to provide an updated authorization form and a second attempt should be made to procure complete private chiropractic records for the Veteran. As noted above, the claims file appears to contain incomplete service treatment records from the Veteran’s Army National Guard service. As the missing records may corroborate his assertion regarding back complaints/injury prior to a work injury in 2006, remand to obtain such records is warranted. 3. Entitlement to service connection for PTSD. The Veteran asserts that he suffers from PTSD related to his military service. In part, he has reported an in-service psychological stressor involving being nearby when a fellow soldier was runover and killed by a tank during a training exercise. In a January 2012 memorandum, VA made a formal finding that it lacked the information needed to corroborate the Veteran’s reported stressors. Although the JSRRC Coordinator indicated that there was insufficient information for verification and/or research of the Veteran’s claimed in-service stressor, the Veteran described the specific circumstances of the incident and reported that a memorial service was held for him in the field. He further identified that this occurred during training between 1994 and 1995, when he was at Fort Riley, Kansas in the 1st Battalion, 16th Infantry. While the Veteran was unable to identify the name of the servicemember who was killed, given the level of specificity provided and the unusual nature of the death in a training setting, it is unclear what further information would be needed in order for the AOJ to request verification of such stressor. On remand, the AOJ should request verification of this stressor through the appropriate channels, or more explicitly indicate why such action would be impossible or futile. 4. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Finally, because the development requested in connection with, and a decision concerning the Veteran’s claim of entitlement to service connection for PTSD could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, the issues are inextricably intertwined. A remand of this claim is therefore also needed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2014 to the Present. Ensure all numeric results of audiometric testing performed on the Veteran, including the testing performed at a June 2012 VA audiology consult, are associated with the claims file. 2. Ask the Veteran to identify and complete a VA Form 21-4142 for any relevant private treatment records he wishes VA to obtain on his behalf, to include an updated form for those from the chiropractor (Dr. F.M.?) he reports saw him beginning in 1995. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. For the identified chiropractor, confirmation should be sought as to whether the Veteran was a patient between the dates identified, and whether his file contains more than the two previously-submitted records dating from September 1991 and June 2006. 3. Obtain the Veteran’s complete service treatment records pertaining to his service in the Army National Guard of Louisiana from 2001 to 2002. Document all requests for information as well as all responses in the claims file. 4. After completing the aforementioned development and associating all responsive records with the Veteran’s VA claims file, schedule the Veteran for a VA examination with a board-licensed audiologist to evaluate the nature and etiology of any hearing loss. Any and all studies, tests, and evaluations deemed necessary should be performed and the results recorded. All pertinent evidence of record must be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether these records, to include a copy of this remand, were reviewed in connection with this examination. If audiometric testing reveals a hearing loss disability for VA compensation purposes for either ear, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss arose during service or is otherwise related to his active military service, to include his conceded in-service excessive noise exposure from duties as a heavy anti-armor weapons infantryman. In providing this opinion, the examiner must consider the Veteran’s military occupational specialty; any objective medical findings in the service treatment records; and his competent statements regarding his consistently-experienced tinnitus beginning in service. All opinions must be supported by a complete rationale. 5. Take all appropriate action to attempt to corroborate the Veteran’s reported in-service stressor, involving being in the vicinity of a servicemember who died in a training accident when his head was run over by a tank. The Veteran reports that such occurred between 1994 and 1995, when he was at Fort Riley, Kansas in the 1st Battalion, 16th Infantry, and that there was a memorial service held in the field. If more details are needed, contact the Veteran to request the information. (continued on next page)   6. Thereafter, conduct any additional development deemed necessary in light of the expanded record, then readjudicate the claims for service connection for bilateral hearing loss, a low back disability, PTSD, and an acquired psychiatric disorder other than PTSD. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel