Citation Nr: 20004147 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-10 820 DATE: January 16, 2020 ORDER Service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for a disorder manifested by chronic fatigue, to include chronic fatigue syndrome, is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, tinnitus manifested within one year of her separation from active service. CONCLUSION OF LAW The criteria to establish service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2011 to June 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the November and December 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection – Pertinent Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Tinnitus (as an organic disease of the nervous system) is a chronic disorder listed under 38 C.F.R. § 3.309; thus, 38 C.F.R. § 3.303 (b) is applicable. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Tinnitus The Veteran seeks service connection for tinnitus. There is evidence of currently diagnosed tinnitus. The Veteran has indicated throughout the appeal that she has tinnitus, a diagnosis capable of lay observation. See e. g., June 2016 statement. During an October 2016 VA examination, the Veteran reported that her symptoms began in service, and the examiner diagnosed bilateral tinnitus. See also March 2017 Audiologic Evaluation, Evans ACH. Moreover, there is evidence of exposure to acoustic trauma in service. The Veteran reports having been exposed to noise exposure while working on the flight deck of the USS Stennis from 2011 to 2015. As these contentions are supported by the Veteran’s service personnel records, the second element of service connection is met. See 38 U.S.C. § 1154 (a), (b) (2012). After resolving any reasonable doubt in the Veteran’s favor, the Board finds that her tinnitus manifested within one year of separation from active duty service and that this disability has been continuous since that time. The Veteran separated from active duty service in June 2015. She filed the present claim for service connection for tinnitus (intent to file) in May 2016; thus, within a year of separation from active duty service. At the very least, her competent and credible lay statements during the appeal indicate that tinnitus became manifest within one year of separation from service following repeated exposure to excessive noise in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, one of the Veteran’s primary care providers (C.M.S., Command Surgeon) opined in a March 2019 memorandum that the Veteran’s tinnitus, as relevant here, is incident to service, was exacerbated by her shipboard duties, and continues to cause dysfunction. As the elements of service connection have been met, the claim must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Chronic Fatigue Syndrome (CFS) Remand is necessary to provide the Veteran with an additional VA examination to ascertain the likely etiology of claimed CFS and to obtain any relevant private treatment records. The Veteran was afforded a VA examination in November 2016. During the evaluation, the Veteran reported that her fatigue symptoms began in 2015 and attributed it to her erratic work schedule while on active duty. The examiner stated that the Veteran had never been diagnosed with CFS. Also, the examiner referenced an October 2016 psychiatric VA examination, which listed a diagnosis of “other specified sleep wake disorder.” However, the VA examiner did not provide a specific medical opinion as to the etiology of the Veteran’s fatigue symptoms, did not address the VA treatment notations of the Veteran having a history of CFS, and did not explain why the Veteran’s symptoms are related to a psychiatric disorder as opposed to a diagnosis of CFS. Lastly, the evidence notes that the Veteran had a non-VA primary care physician and was advised to follow up with that practitioner. Any relevant private records may provide some insight as to the etiology of her symptoms. Left Knee Service treatment records show that a left knee disorder (MCL sprain) was “noted” on the Veteran’s entrance examination. See April 2011 Report of Medical Examination. As such, the Veteran had a pre-existing left knee disorder prior to service entrance. For these reasons, the presumption of soundness at service entrance does not attach. See 38 U.S.C. § 1111. Moreover, in a March 2019 statement, the Veteran reported that she sought treatment for her left knee disorder on several occasions for ace bandages, ice bags, and pain medications during service. The available service treatment records do not show any treatment for a knee disorder during service; however, the Veteran has suggested that some of her records may be missing. See Veteran’s March 2019 statement. On remand, the RO should ensure that the Veteran’s STRs are complete. Nonetheless, in a May 2015 Report of Medical History, completed by the Veteran at service separation, she specifically checked “YES” as to having “knee trouble.” She again referenced the pre-service knee injury and indicated that her knee “still swells up every once in a while.” The November 2016 VA examiner opined that the Veteran’s pre-existing knee disorder was not aggravated beyond its natural progression during service. The examiner stated that flareups of a preexisting disorder during service are not considered aggravation unless the underlying condition worsens. The examiner noted that pathology of the left knee as shown on x-rays was relatively the same as it was prior to service entry. Notwithstanding, the Board observes that the left knee disorder was relatively asymptomatic at entrance, and the Veteran has competently reported having had left knee swelling and pain during service, and she specifically reported left knee symptoms at the separation examination. Moreover, one of the Veteran’s primary care providers (C.M.S., Command Surgeon) opined in a March 2019 memorandum that the Veteran’s left knee pain, as relevant here, is incident to service, was exacerbated by her shipboard duties, and continues to cause dysfunction. Accordingly, an adequate medical opinion that addresses all relevant evidence should be obtained. The matters are REMANDED for the following actions: 1. Ensure that the Veteran’s STRs are complete as the Veteran suggests that some records may be missing. In doing so, contact the appropriate facility and attempt to obtain any potentially missing service treatment records. If missing STRs are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain any missing service treatment records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. 2. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for any private medical treatment she has received from her primary care physician regarding her CFS. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims folder. 3. Obtain any updated VA treatment records not currently of record and associate them with the electronic claims file. 4. Then, schedule the Veteran for a VA examination to assist in determining the nature and etiology of the Veteran’s claimed chronic fatigue syndrome. The examiner must review all pertinent documents in the record and obtaining a complete medical history from the Veteran. Then, the examiner should provide the following: (a.) State whether the Veteran has CFS or any other disorder productive of chronic fatigue. (b.) If a diagnosis is not rendered, address VA treatment records dated August 2016 (approximately 14 months after separation) reflecting a history of CFS. (c.) Reconcile the November 2016 opinion that the Veteran’s fatigue symptoms are attributed to a psychiatric disorder with the October 2016 VA examination finding that the Veteran does not meet the full criteria for any one sleep disorder. See also March 2017 referred to Mountain Sleep Diagnostics. (d.) If CFS or any other disorder productive of fatigue is diagnosed, provide an opinion as to whether it at least as likely as not (i.e., probability of 50 percent or greater) had its origin in service or is otherwise related to the Veteran’s service. *In doing so, address the Veteran’s statement that her symptoms began in 2011 after having worked 16-18 hours a day aboard ship on a rotating day/night schedule AND the March 2019 memorandum from Command Surgeon who opined that the Veteran’s sleep issues, as relevant here, are incident to service, were exacerbated by her shipboard duties, and continue to cause dysfunction. All opinions should be accompanied by a clear rationale. 5. Obtain a VA medical opinion regarding the Veteran’s left knee disorder. The need for an additional examination is left to the discretion of the designated examiner. The examiner is asked to review the claims file and address the following: (a.) Opine whether the Veteran’s left knee disorder noted at entrance was at least as likely as not (50 percent or greater probability) aggravated by service aboard the aircraft carrier while working in supply lifting and moving heavy objects. **In doing so, address: i) the entrance examination report showing a left knee disorder that appeared to be relatively asymptomatic; ii) the Veteran’s statement that she received ace bandages, ice packs and pain medication for left knee symptoms during service; iii) the occasional swelling specifically reported at service separation; iv) documented knee pain complaints requiring medication within 14 months of separation (August 2016 VA treatment notes); and v) March 2019 memorandum from Command Surgeon who opined that the Veteran’s left knee pain, as relevant here, is incident to service, was exacerbated by her shipboard duties, and continue to cause dysfunction. A rationale should be provided for all opinions rendered. 6. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei 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.