Citation Nr: 18123791 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 16-59 673 DATE: August 3, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for residuals of a cerebrovascular accident is remanded. Entitlement to service connection for diabetes mellitus, type 2 is remanded. Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to July 1991. 1. Entitlement to service connection for tinnitus 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first 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). The Veteran has asserted that he experiences tinnitus, or ringing in the ears. The Board notes that tinnitus is capable of lay observation, and the Veteran has offered competent, credible testimony that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Thus, the Veteran has met the current disability requirement for tinnitus. Further, a June 2015 record from Dr. C.E.M.Q., M.D., notes that the Veteran has complained of tinnitus since service. The Board finds no reason to doubt the credibility of the Veteran’s statements regarding his tinnitus beginning in service and continuing since then. While there is no nexus opinion of record, tinnitus is among the chronic diseases listed at 38 C.F.R. § 3.309(a) that may be service connected based on continuity of symptomatology, which the Veteran has demonstrated. Additionally, tinnitus is a rare type of disability for which, in the vast majority of cases, service connection may be established when there is credible lay evidence of continuity of symptomatology since service. See Charles, supra. Given the nature of the disability, as explained above, the Board finds that the Veteran’s competent and credible assertions of experiencing tinnitus in service, continuing to experience tinnitus after service, and currently experiencing tinnitus, are sufficient to support a finding that that there may exist a nexus between the Veteran’s military service and his current tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Again, the Board finds no reason to question the veracity of the Veteran’s assertions in this regard. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Initially, potentially pertinent to all matters on appeal, the Veteran reported receiving treatment from VA on his claim for service connection. However, there are no VA treatment records associated with the Veteran’s claims file. Remand is required to obtain these potentially relevant, outstanding VA treatment records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In a June 2015 record, Dr. C.E.M.Q. diagnosed the Veteran with bilateral hearing loss, hypertension, diabetes mellitus, diabetic neuropathy of the bilateral upper and lower extremities, glaucoma, a cervical spine disability, a lumbar spine disability, left shoulder osteoarthritis, and several acquired psychiatric disorders. Dr. C.E.M.Q. then related all diagnosed disabilities to service by stated “[t]his is a 44 year old Veteran who presents ophthalmologic, cardiovascular, metabolics, severe musculoskeletal and psychiatric disorders which are more probable than not secundary [sic] to his military service performance.” To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any disability for which service connection is sought. The above-cited evidence is sufficient to trigger VA’s duty to provide the Veteran examinations to determine the nature and etiology for the disabilities for which service connection is sought. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, the claim for a TDIU is inextricably intertwined with the claims for service connection, which are being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). As such, the Board will defer adjudication of that claim pending the remand of the other claims remaining on appeal. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records pertaining to the Veteran, if any. 2. Schedule the Veteran for a VA examination to determine the etiology of any lumbar spine, cervical spine and/or left shoulder disability. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any lumbar spine disability had its onset in service or is otherwise related to service? (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that any cervical spine disability had its onset in service or is otherwise related to service? (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that any left shoulder disability had its onset in service or is otherwise related to service? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 3. Schedule the Veteran for a VA examination to determine the etiology of any glaucoma. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that any glaucoma had its onset in service or is otherwise related to service? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 4. Schedule the Veteran for a VA examination to determine the etiology of any bilateral hearing loss. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that any bilateral hearing loss had its onset in service or is otherwise related to service? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 5. Schedule the Veteran for a VA examination to determine the etiology of any hypertension, residuals of cerebrovascular accident or heart disability. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any hypertension disability had its onset in service or is otherwise related to service? (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that any residual of cerebrovascular accident had its onset in service or is otherwise related to service? (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that any heart disability had its onset in service or is otherwise related to service? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 6. Schedule the Veteran for a VA examination to determine the etiology of any diabetes mellitus and peripheral neuropathy. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any diabetes mellitus had its onset in service or is otherwise related to service? (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that any peripheral neuropathy had its onset in service or is otherwise related to service? (c) If it is determined that diabetes mellitus is related to service, is it at least as likely as not (i.e., 50 percent or greater probability) that any peripheral neuropathy is either caused by or aggravated beyond by diabetes mellitus? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 7. Schedule the Veteran for a VA psychiatric examination. The electronic claims folder must be made available to and reviewed by the examiner. The examiner must conduct a complete psychological examination with any indicated testing and state each diagnosis conforming to the DSM-5. If the Veteran meets the criteria for a DSM-5 diagnosis of PTSD, the examiner should identify the stressor(s) upon which such diagnosis is based. For each psychiatric disorder diagnosed, the examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that such disorder had its onset in or is otherwise related to service? A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel