Citation Nr: 20006366 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-43 121 DATE: January 27, 2020 ORDER 1. Service connection for tinnitus is granted. 2. Service connection for a right middle finger scar (claimed as right middle finger laceration) is granted. REMANDED 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to service connection for bilateral plantar fasciitis is remanded. 6. Entitlement to service connection for a right thumb disability is remanded. 7. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is reasonably shown to have had onset in service, and to have persisted since. 2. It is reasonably shown that the Veteran has a scar residual of a right middle finger injury sustained in service. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303(b), 3.304. 2. Service connection for a right middle finger scar is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1976 to January 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. In September 2019, a videoconference hearing was held before the undersigned in Washington, D.C.; a transcript is in the record. In January 2014 the Veteran requested reconsideration of the May 2013 rating decision. A June 2014 rating decision continued the denial of service connection for the disabilities. Within a year after the June 2014 rating decision, the Veteran submitted statements including a July 2014 statement from his ex-wife about his hearing loss, tinnitus, right thumb, right shoulder, PTSD, and feet, and a January 2015 statement from his son that discussed the Veteran’s feet, right shoulder, hearing loss, and PTSD, and April and May 2015 private treatment records. A notice of disagreement (NOD) is a written communication from a claimant, representative, expressing dissatisfaction or disagreement with an adjudicative determination by the Regional Office (RO) and a desire to contest the result. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can reasonably be construed as a disagreement with the determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). [Effective March 24, 2015, VA amended its rules as to what constitutes a valid NOD, requiring that such be submitted on a specific form prescribed by the Secretary. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (eff. Mar. 24, 2015); 38 C.F.R. § 20.201.] The Board acknowledges the new rule effective March 24, 2015. However, it does not appear that the statements and treatment records submitted by the Veteran were acknowledged, and he was not informed that a NOD had to be on a proper form. On June 2, 2015 (prior to the one-year period) he submitted a ‘new’ claim for the above issues. Looking at the evidence as a whole, it is clear he intended to disagree with the June 2014 rating decision (although service connection claims for sleep apnea and a left shoulder disability were also addressed in the May 2013 and June 2014 rating decisions, the Veteran did not continue to appeal those issues). A February 2016 rating decision continued the denial of the above claims, and the Veteran submitted a timely NOD and substantive appeal. Therefore, the Board will address the issues on merits (as was done at the September 2019 Board hearing). [Notably, doing so is favorable to the Veteran, as the standard of proof in a claim on the merits is less burdensome than when a claim must be reopened prior to consideration on the merits.] The Veteran has psychiatric diagnoses other than PTSD, to include major depressive disorder, and under Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) his claim seeking service connection for PTSD is interpreted as encompassing all psychiatric diagnoses. The issue is characterized accordingly. 1. Service connection for tinnitus is granted. The Veteran’s military occupational specialty (MOS) was generator operator. His service treatment records (STRs) contain no mention of complaints, diagnosis or treatment pertaining to tinnitus. On May 2012 VA hearing loss examination, the Veteran reported tinnitus that occurred once a week and lasted about 5 minutes. He stated that he had experienced tinnitus “for a while.” The examiner opined that the Veteran’s tinnitus was at least as likely as not related to his non-service-connected (left ear) hearing loss. On May 2014 hearing loss examination, the Veteran reported recurrent tinnitus that began in September 2004, that he worked as a painter postservice, and that his postservice working environment was not noisy. The examiner opined that his tinnitus was more likely than not associated with his hearing loss. In a July 2014 statement, the Veteran’s ex-wife related that when she met him in 1982, he complained about ringing in his ears and that he has continued to complain about the ringing since. A May 2015 private hearing loss disability benefits questionnaire (DBQ) notes that the Veteran reported recurrent tinnitus, but the provider did not inquire about date of onset. In an August 2016 statement the Veteran related that he developed tinnitus in both ears during service. At the September 2019 Board hearing, the Veteran testified that he was exposed to noise from generators and tanks and was not provided hearing protection. He reported that he developed ringing in his ears during service and continues to experience ringing in his ears. The Veteran claims service connection for tinnitus is warranted because it began in service and is related to his exposure to noise therein. Based on his military occupation, and his accounts of exposure to noise during service working near generators and tanks, it may reasonably be conceded that he had some exposure to significant levels of noise in service. Tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it). The Veteran is competent to establish by his own accounts that he has tinnitus (had it continuously since service). The Board has no reason to question his reports that he has tinnitus, and it is not in dispute that he has tinnitus. What remains to be established to substantiate this claim is that the tinnitus is etiologically related to the Veteran’s service, was incurred therein. There is conflicting competent evidence in the record addressing that question. The Board finds that the evidence supporting the claim is, at least, in equipoise with the evidence against the claim. The Board finds no reason to question the credibility of the Veteran’s accounts (in August 2016 and September 2019) that his tinnitus began in service, and has persisted since. Additionally, in a July 2014 statement his ex-wife (who met him in 1982 shortly after his discharge from service) supported his assertion by relating that he reported tinnitus when they met and has since reported experiencing it. While on May 2014 VA examination, the Veteran reported that his tinnitus began in September 2004, there is no further explanation for this date. It is entirely plausible that the Veteran may have had tinnitus during the interval between his service and the initial recorded report, but it had not yet developed to the point where he determined that he needed to seek treatment. Resolving reasonable doubt in the Veteran’s favor, as is required when the evidence is in equipoise (see 38 C.F.R.§ 3.102), the Board finds that service connection for tinnitus is warranted. 2. Service connection for a right middle finger scar is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). An October 1978 STR notes that the Veteran sustained a right middle finger laceration that was a possible human bite. His December 1978 separation examination notes a healing laceration over the proximal interphalangeal (PIP) joint on the 3rd finger of his right hand. On April 2012 VA hand and finger examination, the Veteran reported that he lacerated his right middle finger during service and received stitches and that his middle finger pain has increased. The diagnosis was right middle finger laceration. On examination, a scar was noted, but the examiner did not indicate the size. The examiner opined that it was less likely than not that the Veteran’s right middle finger laceration was related to his service. He explained that this type of finger laceration would not be expected to have long-lasting residuals and that there were no notations in the record of an ongoing chronic condition. In an August 2012 statement, the Veteran reported pain and swelling in his right middle finger. At the September 2019 Board hearing, the Veteran testified that during service he was involved in a fight in which he gashed his right middle finger when he hit another soldier in the mouth. He sought treatment and received five stitches to the finger. He reported ongoing middle finger pain and that a scar was still visible. The Veteran’s account of his right middle finger injury inservice is supported by evidence of record. An October 1979 STR notes the injury, and a right middle finger scar was noted on his separation examination. Throughout, including in testimony at the September 2019 Board hearing, he has maintained that he injured his right middle finger during service. He is competent to observe that he has a scar residual of a right middle finger injury; the Board has no reason to question the credibility of his sworn testimony. Although on April 2012 VA hand and finger examination the examiner opined that a right middle finger injury residual was not related to the Veteran’s service, the scar noted on examination was not specifically addressed, and the examination, therefore, is inadequate. Considering the totality of the evidence and resolving reasonable doubt in the Veteran’s favor as required (see 38 C.F.R. § 3.102), the Board finds it shown that he has a scar residual of a right middle finger injury sustained in service. Service connection for a right middle finger scar is warranted. REASONS FOR REMAND 3. Entitlement to service connection for a psychiatric disability, to include PTSD. Service connection for PTSD has been denied because the Veteran’s reported stressors in service could not be verified. A May 2013 Defense Personnel Records Information Retrieval System (DPRIS) response notes that a search of records and U.S. Army casualty information found no record that 3rd battalion of the 63rd Armored Brigade suffered any casualties in 1978 due to suffocation or suicide. It was also noted that there could possibly be a criminal investigation related to the alleged incidents. A May 2015 private PTSD DBQ notes diagnoses of major depressive disorder and PTSD. The provider did not opine regarding whether the Veteran’s PTSD is related to service and did not identify the stressor upon which the PTSD diagnosis was based. An October 2015 deferred rating notes that the earlier DPRIS memorandum was inconclusive and indicated that the U.S. Army Crime Records Center (CRC) should have been contacted for additional records. Also, a Joint Services Records Research Center (JSRRC) final finding memorandum was not in the record. In December 2015 notice was sent to the CRC regarding the alleged stressor events of soldier suffocation and suicide. The request notes a December 1, 1978 incident date, but in an earlier statement, the Veteran reported that the suffocation occurred in April 1978 and the suicide occurred in October 1978. A March 2018 PTSD DBQ notes diagnoses of PTSD and major depressive disorder. The provider did not opine regarding whether the Veteran’s PTSD is related to his service and did not identify the stressor on which the PTSD diagnosis was based. As the stressor events reported by the Veteran (a soldier in his squad dying from suffocation and another committing suicide), have not been corroborated, the May 2015 and March 2018 PTSD diagnoses lack probative value. Proper development of the service connection for PTSD (or other psychiatric disability) claim requires first a finding of whether or not there is credible corroborating evidence of a stressor event in service. DPRIS and the CRC were contacted, but no response was received from CRC. Since the dates reported to CRC differed from the dates the Veteran originally reported, another request to CRC is warranted. Additionally, the claim for PTSD has now been expanded to include any psychiatric disability, and an examination to obtain an adequate medical advisory opinion is necessary. 4. Service connection for bilateral hearing loss. On May 2012 VA audiology examination, the examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to his military service. She explained that his hearing acuity was normal on service entrance and separation and that he denied hearing loss on a 93-101-01 separation form. On May 2014 VA audiology examination, the examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to his military service. She explained that his hearing thresholds at service entrance and separation were within normal limits and that (according to the American College of Occupational Medicine) “a noise induced hearing loss will not progress once it is stopped.” The May 2012 and May 2014 opinions are inadequate for rating purposes. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Furthermore, an alternate likely etiology for the Veteran’s hearing loss was not identified. As neither opinion is adequate, another examination to obtain an adequate medical advisory opinion in the matter is necessary. The Board notes that right ear hearing loss has been denied because a right ear hearing loss was not found on VA examination. At the September 2019 Board hearing, the Veteran testified that his hearing acuity had worsened. Since he is competent to observe worsening of hearing acuity and there is now a possibility that he has a right ear hearing loss disability, an examination to confirm the existence and ascertain the etiology of a right ear hearing loss disability is necessary. At the September 2019 Board hearing, the Veteran testified that he was found to have hearing loss when he worked for the Navy in San Diego in 1987. Records of such evaluation or examination have not been sought, but may contain pertinent information. 5. Entitlement to service connection for bilateral plantar fasciitis. On May 2012 VA foot examination, the examiner opined that it was less likely than not that the Veteran’s bilateral plantar fasciitis is related to his service. She noted foot treatment during service and explained that the Veteran was never seen, diagnosed with, or given care for bilateral plantar fasciitis during service. The opinion is inadequate because it is cursory and does not identify an alternate etiology for the plantar fasciitis. Another examination to obtain an adequate medical advisory opinion is needed. 6. Entitlement to service connection for a right thumb disability. March 1 to March 8, 1976 STRs note the Veteran’s hospital stay for an infected right thumb. In a May 2013 VA opinion, the provider opined that the Veteran’s right thumb disability was less likely than not related to his service. She explained that this type of thumb injury would not be medically expected to have long-lasting residuals, there was no indication in the records of an ongoing chronic condition following his separation from service, and his thumb pain was more likely the result of advancing age. X-rays showed degenerative changes in the distally injured fingers and multiple hand joints. However, at the September 2019 Board hearing, the Veteran testified that following service he sought VA treatment for his right thumb in the 1970’s. Records of such treatment have not been sought and may contain pertinent information, and any such existing and outstanding records must be obtained and considered; VA treatment records are constructively of record. 7. Entitlement to service connection for a right shoulder disability. In a May 2013 VA opinion, (in response to an April 2012 VA examination) the provider opined that the Veteran’s right shoulder disability was less likely than not related to his service. She explained that a right shoulder disability was not noted on service separation examination, there were no notations in the record of ongoing shoulder complaints from service discharge to present, and the mild right shoulder degenerative changes were most likely the result of advancing age. On May 2014 VA shoulder examination, the examiner opined that the Veteran’s right shoulder disability was less likely than not related to his service. He explained that although the Veteran did fall and was seen for that fall in service, there was no continuity or chronicity of care postservice. The opinion is inadequate because an etiology for his right shoulder disability was not provided. At the September 2019 Board hearing, the Veteran testified that he sought private treatment for his right shoulder, and the testimony suggests it was shortly after service. Records of such treatment have not been sought and may contain pertinent information. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations or treatment the Veteran received for hearing loss and his right shoulder s and to submit authorizations for VA to obtain updated, to the present, records of any such private evaluations or treatment (to specifically include records from his employment with the Navy in San Diego from 1987 to 1992). Secure for the record complete clinical records (any not already associated with the record) of the evaluations and treatment from all providers identified. If there are no existing records, it should be so noted for the record (with explanation, e.g., could not be located, were destroyed, etc.). 2. Secure for association with the record all outstanding records of VA evaluations of treatment the Veteran has received for psychiatric disability, hearing loss, a right thumb disability, a right shoulder disability, and bilateral plantar fasciitis (any not already associated with the claims file), in particular records soon following his separation from service in January 1979. If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 3. Ask the Veteran to provide detailed information regarding his alleged stressor events in service; arrange for all indicated development to verify his alleged stressor event (to specifically include a soldier dying by suffocation in April 1978 and a soldier committing suicide in October 1978 while he was stationed with the 3rd battalion of the 63rd Armor Brigade in Augsburg, Germany) based on the information provided; and then make a finding for the record indicating what, if any, stressor event in service (occurring where the Veteran was then located) is corroborated by credible supporting evidence. 4. Then arrange for a psychiatric examination of the Veteran to ascertain the nature and likely etiology of his psychiatric disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination, and the provider should be advised of what stressor events in service, if any, are recognized as corroborated. Following examination and interview of the Veteran and review of his medical history, the examiner should offer an opinion that responds to the following: (a) Identify (by diagnosis) each psychiatric disability entity found (or shown by the record). Specifically, does the Veteran have a diagnosis of PTSD based on a corroborated stressor event in service. If so, identify the corroborated stressor and symptoms supporting the diagnosis. If not, should identify the factors necessary for such diagnosis found lacking. (b) Also identify the likely etiology of any other psychiatric disability entity diagnosed. Specifically, is it at least as likely as not that the disability is related directly to the Veteran’s service/events therein? The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 5. Also arrange for an audiological examination of the Veteran (with audiometric studies) to ascertain the likely etiology of his left hearing loss disability and to confirm whether he now has a right ear hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so, its likely etiology. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should provide opinions that respond to the following: (a) Does the Veteran have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in his right ear? (b) If a right ear hearing loss disability is found, identify the likely etiology of such disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that it is related to his service (to include as due to his exposure to noise therein)? (c) Identify the likely etiology of the Veteran’s left ear hearing loss disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that it is related to the Veteran’s service (to include as due to his exposure to noise therein)? (d) If the a right and/or left ear hearing loss is determined to not be related to service, identify the etiology for the disability considered to be more likely (and explain why that is so). Include rationale with all opinions. The rationale should acknowledge that the absence of a hearing loss disability in service may not be the sole basis for a finding that the disability is unrelated to service. 6. Then arrange for a podiatry examination of the Veteran to confirm the existence (and determine the nature and likely etiology) of his claimed bilateral plantar fasciitis. The Veteran’s record must be reviewed by the examiner, and any indicated diagnostic studies must be completed. The examiner should: (a) Identify (by diagnosis) each left and right foot disability entity found (or shown by the record during the pendency of the claim) during the appeal period. (b) Identify the likely etiology of each left and right foot disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that each left and right foot disability was caused or otherwise incurred during the Veteran’s service? (c) If a left and/or right foot disability was not incurred during the Veteran’s service identify the likely etiology. The examiner must include rationale with all opinions. 7. If (and only if) pertinent VA treatment records are received in response to the above development for the right thumb disability, arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the etiology of his right thumb disability. On a review of the record, the provider should offer an opinion that responds to the following [If the opinion sought cannot be provided without further examination of the Veteran, such should be arranged.]: (a) Identify the likely etiology for the Veteran’s right thumb disability. Specifically, is it at least as likely as not (a 50% or better probability) that a it was incurred during the Veteran’s service? (b) If a right thumb disability was not incurred during the Veteran’s service identify the etiology found to be more likely. The examiner must include rationale with all opinions. 8. If (and only if) pertinent private treatment records are received in response to the above development sought for the right shoulder disability, arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the etiology of his right shoulder disability. On a review of the record, the provider should offer an opinion that responds to the following [If the opinion sought cannot be provided without further examination of the Veteran, such should be arranged.]: (a) Identify the likely etiology for the Veteran’s right shoulder disability. Specifically, is it at least as likely as not (a 50% or better probability) that a right shoulder disability was caused or otherwise incurred during the Veteran’s service? (b) If a right shoulder disability was not incurred during the Veteran’s service identify the etiology considered to be more likely (and explain why that is so). The examiner must include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, Associate Counsel 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.