Citation Nr: 20000071 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 17-21 806 DATE: January 2, 2020 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 27, 2017, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a traumatic brain injury (TBI) and any residuals thereof is remanded. FINDING OF FACT The Veteran’s tinnitus has been shown to be the result of noise exposure during military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1999 to June 1999, from March 2001 to September 2001, from September 2001 to February 2002, and from January 2003 to September 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, continued the 30 percent disability rating for posttraumatic stress disorder (PTSD) and denied service connection for a traumatic brain injury (TBI), sleep apnea, tinnitus, and left chondromalacia and patellofemoral syndrome (left knee disability). In a March 2017 rating decision, the RO increased the disability rating for the Veteran’s service-connected PTSD with alcohol use in early remission to 100 percent, effective February 27, 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. A copy of the transcript has been reviewed and associated with the claims file. Entitlement to service connection for tinnitus Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In the present case, the Veteran asserts that his tinnitus was the result of noise exposure incurred during military service. The evidence shows that the Veteran has recurrent tinnitus. See 03/09/2017, C&P Exam. Furthermore, the Veteran’s DD-Form 214 reveals that he was assigned to an imminent danger zone in Iraq and Kuwait. He testified at the hearing and indicated that he was exposed to loud noises and shooting during service. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. 38 U.S.C. § 1154. Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran’s tinnitus is due to noise exposure during his active military service. Service treatment records are negative for treatment or a diagnosis of tinnitus. The Veteran testified at the hearing in October 2019 and indicated that he had ringing in his ears following his attachment to his military unit and it has continued to the present day. The Veteran underwent a VA examination in September 2014, at which time he indicated that the ringing in his ears began in 2003. The examiner indicated that he could not provide a medical opinion as to the etiology of the Veteran’s tinnitus without resorting to speculation. A subsequent VA examination was performed in March 2017, at which time the Veteran again confirmed that the ringing in his ears began in 2003 during his deployment to Iraq. The examiner concluded that the Veteran’s tinnitus was not related to service given that there were no in-service complaints of tinnitus. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current tinnitus is related to noise exposure during his active military service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent to testify regarding the in-service noise exposure. Furthermore, he stated that he experienced ringing in his ears in service, which continued post-service. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003) (stating that “ringing in the ears is capable of lay observation”). The Board also finds that his statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). The Board acknowledges the negative opinion provided by the March 2017 VA examiner. However, the Board gives little weight to this opinion. In this regard, the examiner based his opinion solely on the fact that the Veteran did not have documented in-service complaints of tinnitus without discussing his lay statements of ringing in his ears since 2003. Furthermore, the Veteran indicated that he experienced ringing in his ears in service, which continued post-service. Given that tinnitus (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection is permissible solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40. In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current tinnitus is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 27, 2017, is remanded. The Veteran filed a claim for an increased rating for his service-connected PTSD in March 2013 and a rating of 30 percent was continued until February 26, 2017. During this time period, the Veteran was receiving counseling at a Vet Center. However, only the Vet Center records up until September 2014 are associated with the claims file. Accordingly, the Board finds that a remand is warranted in order to obtain the Veteran’s counseling records from September 2014 to February 2017. 2. Entitlement to service connection for a left knee disability is remanded; 3. Entitlement to service connection for a traumatic brain injury (TBI) and any residuals thereof is remanded. The Veteran’s military personnel records reflect that he may have had additional active duty dates in 2000, 2002, and 2004. However, the record does not contain these additional active service dates. Accordingly, the Board finds that a remand is necessary in order for the RO to obtain and provide information regarding the Veteran’s periods of active duty, including any ADT (active duty for training), IDT (inactive duty training), or active duty for special work. Furthermore, the Veteran indicated that he injured his left knee and suffered a TBI while in Iraq. His DD Form-214 indicates that he was in an imminent danger zone from January to June 2003 and an April 2008 VA examination indicated that he received a combat action ribbon. However, there is no evidence contained in the file indicating that the Veteran received a combat action ribbon or participated in combat. Accordingly, the Board finds that a remand is warranted in order for the RO to obtain information regarding whether the Veteran served in combat. VA examinations were performed in 2017 to assess the nature and etiology of any left knee disability or TBI. However, after a review of the evidence the Board finds that new VA examinations are warranted. In this regard, the March 2017 examiner found that the Veteran did not have any evidence of a TBI and did not have any current residuals. However, an October 2011 TBI evaluation indicated that the Veteran suffered three traumatic brain injuries, including one in service in 2003 in a Humvee accident. Furthermore, the Veteran’s treatment records indicated that he has complained of migraine headaches following a 2003 injury. Moreover, the February 2017 VA examiner found that the Veteran’s left knee disability was not related to service given that there were no pertinent medical records indicating that his left knee pain persisted after the 2003 accident and that he likely injured his left knee after service. The Board finds that this February 2017 medical opinion is insufficient given the examiner’s failure to acknowledge or discuss the Veteran’s lay statements of continued left knee pain following the 2003 accident and his failure to provide any rationale as to when or how the Veteran injured his left knee following service. Lastly, an October 2011 VA treatment record indicated that the Veteran was seeing a private neurologist for his TBI. The Board finds that any relevant private treatment records should be requested on remand. 4. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran has been assessed with obstructive sleep apnea and asserts that it was incurred in service and/or secondary to his service-connected PTSD. Given that the Veteran has a present disability that may be related to service and/or secondary to his service-connected PTSD, the Board finds that a VA examination is warranted. Lastly, the Veteran indicated that he was diagnosed with obstructive sleep apnea in 2010 at a private facility. Accordingly, the Board finds that any relevant private treatment records should be requested on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from September 2019 to the present. 2. Obtain and associate with the claim’s file the Veteran’s Vet Center counseling records from September 2014 to February 2017. 3. Ask the Veteran to identify any pertinent private medical treatment for his pending claims, including 2010 treatment for his obstructive sleep apnea and 2011 treatment for his TBI, and furnish the appropriate authorization for the release of the medical records. If he fails to furnish the necessary release for private treatment records, he should be advised to obtain the records and submit them to VA. 4. Take all necessary steps to verify the Veteran’s period(s) of active duty for training (ACDUTRA), inactive duty training (IDT), or active duty for special work for the period(s) in 2000, 2002, and 2004. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran’s ACDUTRA, IDT, or active duty for special work service are required. If this information or documentation is unavailable then this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative and they should be given an opportunity to respond. 5. Obtain and associate with the claims file any information indicating that the Veteran participated in combat, including any information regarding whether he received a combat action ribbon. 6. After completion of numbers 1 through 6, schedule the Veteran for a VA examination to determine the nature and etiology of his left knee disability. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any left knee disability found on examination and identified during the pendency of this claim (2013), and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left knee disability had its onset in and/or is otherwise related to a period of active service, including the Humvee accident in 2003? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the Veteran’s hearing testimony and any statements of record indicating that his left knee pain began in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 7. After completion of numbers 1 through 6, schedule the Veteran for a VA examination to determine the nature and etiology of any traumatic brain injury and residuals thereof. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any traumatic brain injury or residuals thereof found on examination and identified during the pendency of this claim (2013), and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s TBI and any residuals had their onset in and/or are otherwise related to a period of active service, including the Humvee accident in 2003? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) Attention is called to the Veteran’s post-service TBIs in 2006 and 2009. The examiner should understand that as long as some level of disability existed prior to the intercurrent incidents, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the Veteran’s hearing testimony, documented migraine headaches, and October 2011 TBI evaluation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 8. After completion of numbers 1 through 6, schedule the Veteran for a VA examination to determine the etiology of his obstructive sleep apnea. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s obstructive sleep apnea was caused by his service-connected PTSD? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s obstructive sleep apnea has been aggravated (worsened beyond its natural progression) as a result of his service-connected PTSD? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and obstructive sleep apnea that shows a baseline of his obstructive sleep apnea prior to aggravation? If so, please identify. C. If the Veteran’s obstructive sleep apnea was not caused and/or aggravated by his service-connected PTSD, then is it at least as likely as not (probability of at least 50 percent) that his obstructive sleep apnea had its onset in and/or is otherwise etiologically related to his period of active service? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the Veteran’s hearing testimony. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.