Citation Nr: 20007288 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 13-28 563A DATE: January 28, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for asthma is denied. REMANDED Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. The Veteran’s current tinnitus was at least as likely as not incurred during active service and has continued since service. 2. The Veteran’s current acquired psychiatric disorder, claimed as PTSD, was at least as likely as not incurred during active service. 3. There is no competent evidence in the record of a nexus between the Veteran’s current asthma and his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, have been met. 38 U.S.C. §§ 1110, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 3. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1972 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in July 2015. The case has been returned to the Board at this time for further appellate review. Since the issuance of the last supplemental statement of the case, additional evidence has been received by the Board for which a waiver of initial RO consideration was provided. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for tinnitus is granted. For chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is a chronic disease. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’”). The Veteran has consistently stated that he was exposed to noise while in service due to his work on boilers, and that he has had ringing in his ears ever since. Accordingly, the Veteran’s lay reports are sufficient to establish that he has tinnitus, as well as continuity of symptomatology since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board notes that VA examiners in January 2012 and December 2015 stated that they could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation, however, an examiner’s determination that they are unable to provide a nexus opinion without resorting to speculation is not tantamount to a negative nexus opinion. The Board also acknowledges that, in a December 2018 VA opinion, a VA audiologist provided a negative nexus opinion regarding the Veteran’s claim for service-connection for tinnitus based on the delayed onset of the Veteran’s tinnitus. However, the Veteran has repeatedly stated that his tinnitus started in service, and he specifically disputed stating that his tinnitus began after service. See, e.g., March 2012 Notice of Disagreement. Because the December 2018 VA clinician’s opinion is based on inaccurate factual premises, the Board finds the opinion to be of little to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The evidence is at least in equipoise as to whether the Veteran’s tinnitus was incurred during military service and has continued ever since. By resolving any reasonable doubt in favor of the Veteran, the Board finds service connection for tinnitus is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is granted. The Veteran initially filed a claim for entitlement to service connection for PTSD. In July 2015, the Board recharacterized the Veteran’s claim as one for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. See Clemons v. Shinseki, 23 Vet. App. 15 (2009). The Veteran, as well as several friends and family members, have stated that the Veteran returned from service a different person. For example, he began to have violent nightmares about his time in service and isolated himself, he became quick to anger, and he would cry for no reason. These symptoms have continued since he left service. A December 2015 VA mental disorders examination reflects diagnoses of unspecified depressive disorder and opiod use disorder, severe, in sustained full remission. The December 2015 VA examiner opined that it is less likely than not that the Veteran’s unspecified depressive disorder began in or is otherwise related to his service. More specifically, the December 2015 VA examiner stated that the Veteran’s depression is related to situational stressors over the past ten years, rather than his military service. The December 2015 VA examiner attributed the Veteran’s personality change after service to his opioid addition, but did not address the fact that the Veteran’s personality change continued, and even worsened, during the thirty-five years since the Veteran’s opioid addiction went into remission. A July 2019 private examination report from K. B., Psy. D., reflects diagnoses of (1) major depressive disorder, recurrent, moderate, with anxious distress, (2) alcohol use disorder, moderate, and (3) cannabis use disorder, moderate. The private examiner stated that it is more likely than not that all three conditions developed while the Veteran was in service because the Veteran’s symptoms, including frustration, irritability, and reclusiveness, started while he was in service. The private examiner also stated that the Veteran’s anxiety and depressive symptoms continued after his discharge from service, however, he did not have the insight to realize he was suffering from mental illness and relied on alcohol and other substances to cope with his symptoms. In other words, the private examiner stated that the Veteran’s poor insight and coping skills contributed to his delay in seeking treatment until 2010, at which point the Veteran realized that many of the problems he had been experiencing since service stemmed from his mental illness. The evidence is at least in equipoise as to whether the Veteran’s current acquired psychiatric disorder was incurred during military service and the symptoms have continued ever since. By resolving any reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disorder, claimed as PTSD, is warranted. 3. Entitlement to service connection for asthma is denied. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. In December 2015, a VA clinician opined that the Veteran’s asthma clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression during the Veteran’s service. The clinician further stated that it seems unlikely that reasonable minds would differ as to whether the Veteran’s asthma preexisted his military service and that it was less likely than not that the Veteran’s asthma was aggravated beyond its natural progression during service given that there was no evidence that the condition would be different at its current levels even in the absence of active service. The Veteran does not seem to dispute that he had asthma as a child, therefore, the condition clearly and unmistakably pre-existed service. However, the probative, competent evidence of record demonstrates that the Veteran’s asthma was clearly and unmistakably not aggravated during his time in service. The December 2015 VA examiner opined that there is no evidence that the Veteran’s asthma would not exist at its present level even in the absence of his active duty because the Veteran’s pulmonary function tests have shown normal results on multiple occasions. In addition, the December 2015 VA examiner notes that the Veteran’s history of tobacco use is a factor. Finally, the December 2015 VA examiner notes that the Veteran’s asthma could not be due to asbestos exposure in service since the asthma pre-existed his active duty service. In March 2011, the Veteran stated that he has asthma and was exposed to coal, water treatment chemicals, and asbestos while in service. In April 2011, the Veteran also stated that he was exposed to insulation and algae in service which caused him to increase the use of his inhaler. While the Veteran is competent to report symptoms such shortness of breath and the use of his inhaler, his general lay statements are outweighed by the December 2015 negative nexus opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether medical versus lay evidence is needed to support a claim is fact specific (i.e., a case-by-case judgment), based on the specific type of condition being claimed, including in terms of whether it is simple or instead complex). Accordingly, as the preponderance of the evidence is against the Veteran’s claim, the claim for service connection for asthma must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder is remanded. In July 2015, the Board recharacterized the Veteran’s various skin claims, including those related to his hands and feet, as a claim for entitlement to service connection for a skin disorder. This claim was remanded for a VA examination and the examiner was directed to (1) provide a nexus opinion for any diagnosed skin disorder and (2) comment on the Veteran’s service treatment records indicating a rash on the Veteran’s face and chest. The Veteran was afforded a VA skin diseases examination in December 2015, however, the examiner did not provide a nexus opinion regarding each of the Veteran’s skin conditions, nor did they address the Veteran’s service treatment records. Accordingly, the Board finds that another remand is necessary to ensure compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination, preferably with an examiner who has not previously examined the Veteran, to determine whether any skin condition that the Veteran has had during the pendency of this claim is related to the Veteran’s military service. Following review of the claims file the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any skin condition that the Veteran has had during the pendency of this claim began in or is otherwise caused by the Veteran’s active service. The selected examiner must address the Veteran’s (1) lay statements that he has suffered blisters on his hands and feet while in service as well as since being discharged from service, (2) February and October 1973 service treatment records (STRs) indicating that he experienced athlete’s foot, a June 1973 STR indicating a corn and webbing around his fourth and fifth metatarsals, a September 1973 STR in which the Veteran complained of calluses on both hands, and October and November 1973 STRs indicating the Veteran suffered from a rash to his face and chest while in service, and (3) private and VA treatment records diagnosing the Veteran with chronic dermatitis of his feet, tinea pedis, lesions on his chest, flaking toenails, a lichenified plaque, and blistering of his hands and feet. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.