Citation Nr: 20030185 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-40 349A DATE: April 29, 2020 ORDER Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for an acne disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, mood disorder, and bipolar disorder is granted. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for recurrent tinnitus, to include as secondary to bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding of an in-service injury or treatment of a right elbow injury, and his current right elbow disability is not etiologically related to service. 2. The Veteran did not have a pre-existing acne disability prior to service as there was no acne disability noted at the time of the examination, acceptance, and enrollment into service. 3. The Veteran does not have a current acne disability. 4. Resolving any reasonable doubt in favor of the Veteran, his acquired psychiatric disabilities, to include PTSD, anxiety, mood disorder, and bi-polar disorder is etiologically related to his reported in-service stressors. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for an acne disability have not been met. 38 U.S.C. §§ 1111, 1112, 1113,1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for an acquired psychiatric disability has been met. 38 U.S.C. §§ 1111, 1112, 1113,1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1985 to April 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 VA notification letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as bilateral hearing loss and arthritis, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Right elbow The Veteran seeks service connection for a right elbow disability. Upon review of the pertinent evidence, a January 2012 VA examination notes a finding of degenerative arthritis of the right elbow. Accordingly, the Board concludes that he has a current diagnosis. However, the preponderance of the evidence is against a finding of an in-service incurrence. The Veteran’s service treatment records (STRs) indicate he sought treatment for poison ivy and a bug bite on his right arm on two separate occasion, there were no complaints or treatment for right elbow pain or injury. Although his STRs reflect he sought treatment for a left elbow injury, there is no indication that he also complained of a right elbow injury at that time. A review of his entrance and separation examination further does not show any report of right elbow injury or an abnormal finding of his upper extremities. As the January 2012 VA examiner indicates he has a diagnosis of degenerative arthritis, the Board has also considered whether he is entitled to presumptive service for a chronic disease. However, as there was no diagnosis of degenerative arthritis of the right elbow until January 2012, 14 years after service, his current degenerative arthritis diagnosis did not manifest to a compensable degree within a year after separation from service. Therefore, he is not entitled to service connection on a presumptive basis. The Board has considered the Veteran’s contention that his right elbow disability is related to a torn tendon in service. See January 2012 Private Treatment Record. However, his STRs do not indicate that he was diagnosed with torn tendon for the right elbow. Rather, the evidence only shows a diagnosis of a torn tendon for his left elbow in July 1987. As such, the Board does not find the Veteran’s lay statement to be credible. Accordingly, the Board finds that the preponderance of the evidence is against a finding of an in-service incurrence of a right elbow injury or diagnosis. Thus, the benefit of the doubt doctrine is not for application, and the Veteran’s claim must be denied. 2. Acne The Veteran seeks service connection for an acne disability. At the outset, the Board notes that every veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as “noted,” 38 C.F.R. § 3.304 (b), and a history of pre-service 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). To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003); 70 Fed. Reg. 23,027 (May 4, 2005); Wagner v. Principi¸ 370 F.3d at 1096. Here, the Board notes that the RO previously determined the Veteran’s acne disability pre-existed service. However, upon review of his entrance examination, there is no noted acne disability prior to acceptance and enrollment into service. Although the Veteran reported he had a history of acne in the report of medical history questionnaire, it is not considered to be “noted” under 38 C.F.R. § 3.304 (b)(1). As such, the Veteran did not have a pre-existing acne disability prior to service. Therefore, the presumption of soundness has not been rebutted and the claim is one for service connection. Wagner¸ 370 F.3d at 1096. Upon review of the pertinent evidence, the Veteran does not have a current acne disability. His STRs indicates that he has a history of acne and received treatment on several occasions throughout service. However, an October 2012 VA examiner stated he denied being treated for acne within 12 months prior to the VA examination and that his record was silent for acne treatment. Upon examination of the Veteran for any acne disability, the VA examiner noted he had no visible skin conditions. VA treatment records do not show treatment for any skin condition and in a February 2010 record, the Veteran denied any current rash, lesions, acne, dry skin, itching, or hives. As there is no evidence to the contrary, the Board concludes that the Veteran does not have a current diagnosis of acne and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the Board finds the preponderance of the evidence is against a finding of a current acne disability. As such, the benefit of the doubt doctrine is not for application and the Veteran’s claim is denied. 3. Acquired Psychiatric Disorders At the outset, the Board finds that the Veteran’s claim for PTSD should be recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety, mood disorder, and bipolar disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Veteran specifically contends that his acquired psychiatric disorders are related to his service. Establishing service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (under the criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM)), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. There generally must be independent evidence to corroborate the Veteran’s statement as to the occurrence of the stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The PTSD regulations include provisions pertinent to Veterans with combat-related stressors, stressors founded on fear of hostile military or terrorist activity, stressors based on being a prisoner of war, and stressors based on personal assault. With regards to a current psychiatric diagnosis, a review of the evidence shows that a March 2012 private psychologist noted the Veteran’s claimed stressors, evaluated the Veteran, and reported a PTSD diagnosis in accordance to DSM-IV based on symptoms of re-experiencing, avoidance, and hyperarousal. Subsequently, an October 2012 VA examiner stated that the Veteran’s symptoms did not meet the full criteria under DSM-IV. In reviewing the evidence, the Board finds that both medical opinions are well supported by the lay and medical evidence. As such, in resolving any reasonable doubt in favor of the Veteran, the Board finds that he has a current diagnosis of PTSD. The evidence further supports a current diagnosis of anxiety disorder, mood disorder, and bi-polar disorder as indicated in the March 2012 private medical opinion and October 2012 VA examination. Although, a March 2012 private psychologist diagnosed him with a non-specified personality disorder, the Board notes that a personality disorder is not considered to be a disease or injury for which service connection may be granted. Accordingly, the Board finds that the Veteran has a current acquired psychiatric disorder, to include PTSD, anxiety, mood disorder, and bi-polar disorder. Thus, what remains for consideration is whether there was an in-service disease or injury and whether the Veteran’s current disability is causally related to his time in-service. In this regard, the Board finds that there is evidence for and against establishing a medical nexus in support of his claim. In a March 2012 private medical opinion, the Veteran reported PTSD stressors related to being in fear of his life during a training missions near the border of Nicaragua when an individual, perceived to be a threat from the Nicaraguan Army entered the water treatment plant that he was defending. He also stated that while training at a firing range, another soldier pointed a gun at his chin and threatened to kill him and the entire squad. Additionally, the Veteran states that he was involved in demolition training once a year but became fearful of blowing himself up following a 1987 explosion in Germany which killed an entire platoon. Upon evaluation of the Veteran, the private psychologist stated that the results of assessment were consistent with the presence of PTSD and mood disorder. The private psychologist reported he was exposed to marked trauma and exhibited symptoms related to persistent re-experiencing, persistent avoidance or numbing, persistent arousal, and that these symptoms were found in those suffering from PTSD. The private psychologist further opined that his symptoms are as likely as not related to his service. The Veteran was further provided with a VA examination in October 2012. As previously discussed, the VA examiner stated he did not have a diagnosis of PTSD because he did not meet the full criteria for a PTSD diagnosis. Thus, no medical opinion was provided with regards to his claim for PTSD. However, the VA examiner stated the Veteran’s described stressors were sufficient to cause PTSD and/or other disorders. Specifically, the VA examiner stated that the Veteran’s training in service can be life threatening because fatalities and accidents can occur during simulation of actual combat conditions. Moreover, the VA examiner conceded that his in-service stressors is related to fear of hostile military or terrorist activity and opined that his anxiety disorder and bipolar disorder was at least as likely as not related to the claimed in-service stressor. The Board has further considered the Veteran’s lay statements and find him to be credible in this respect Although a review of review of his service treatment records are silent for any symptoms and treatment of a psychiatric condition, he has consistently reported that he first experienced symptoms associated with a psychiatric disorder while he was in active. See March 2012 private medical treatment record and October 2012 VA examination. Moreover, while the RO was unable to verify the Veteran’s reported PTSD stressors, the October 2012 VA examiner stated that his presentation was consistent with his report of symptoms and is reliable. Additionally, the VA examiner stated that his descriptions of his present symptom’s onset, course of development, effects on his life, and attempted ways of coping were credible and consistent with his experiences. Accordingly, as a veteran is competent to report what he experienced or observed, the Board finds that his lay statements coupled with his military occupational specialty as a combat engineer and demolition specialist are consistent with the facts and circumstances of his service. Layno v. Brown, 6 Vet. App. 465 (1994). In conclusion, the Board finds that the medical evidence is a least in equipoise as to whether his acquired psychiatric disorders are related to the reported in-service stressors related to fear of hostile military or terrorist activity. Therefore, in resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, mood disorder, and bipolar disorder is warranted. REASONS FOR REMAND 1. Left elbow The Board finds that additional development is necessary before a decision may be rendered on the issues on appeal. In October 2012, the Veteran was provided with a VA examination for his left elbow disability. However, the VA examiner stated the Veteran’s claims file was not made available for review and the examiner was unable to form any meaningful medical opinion. The Board notes that his service treatment records indicate he was treated for a torn left elbow ligament in service. As the VA examiner was unaware of this information and was unable to formulate any meaningful opinion, the October 2012 VA examination is inadequate. Accordingly, a remand is warranted to afford the Veteran with a new VA examination to determine the etiology of his left elbow disability. 2. Bilateral hearing loss The Veteran asserts that his hearing loss disability is related to noise exposure in service due to his military occupational specialty as a combat engineer and demolition specialist. The Veteran was afforded a VA examination in September 2012. The VA examiner noted the Veteran’s MOS as a combat engineer and conceded acoustic trauma. However, the VA examiner reasoned that his hearing loss was less likely than not related to service as there was no hearing loss noted upon separation. The VA examiner further noted that the Institute of Medicine (IOM) concluded there was no significant basis for the existence of delayed onset of hearing loss but then subsequently states that IOM did not rule out that delayed onset might exist. The VA examiner ultimately states that there are no current studies to support delayed onset hearing loss, and that based on the current knowledge of acoustic trauma and instantaneous or rapid development of noise-induced hearing loss, there is no reasonable basis for delayed onset hearing loss. The Court of Appeals for Veterans Claims (Court) in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that the regulation defining disability due to impaired hearing, 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s directives in Hensley are consistent with the regulation setting forth the requirements for service connection, 38 C.F.R. § 3.303(d). It provides that 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. Accordingly, as the VA examiner’s opinion appears to be based solely on the lack of evidence of hearing loss in service and upon separation from service. As the Board is unable to make a fully informed decision on this issue because there is insufficient evidence as to whether his current hearing loss is etiologically related to service, this matter must be remanded for another VA examination. 3. Recurrent tinnitus, to include as secondary to bilateral hearing loss disability In a September 2012 VA examination, the audio examiner stated that the Veteran’s recurrent tinnitus was at least as likely as not a symptom of his hearing loss. However, as the Veteran’s bilateral hearing loss disability is being remanded, a decision on the issue of service connection for hearing loss could significantly impact a decision on the issue of service connection for tinnitus. Thus, the issues are inextricably intertwined and a remand of the claim for service connection for tinnitus is required. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment or private treatment records and associate them with the claims file. 2. After, schedule the Veteran for a VA examination to obtain a medical opinion addressing the nature and etiology of his left elbow disability. The claims file, including a copy of this remand must be made provided to the examiner and the examiner must note his or her review of the record in the examination. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that his left elbow disability is related to his service, to include a torn left elbow tendon in service. 3. Next, schedule the Veteran for a VA examination to obtain a medical opinion addressing the nature and etiology of his bilateral hearing loss disability and tinnitus. The claims file, including a copy of this remand must be made provided to the examiner and the examiner must not his or her review of the record in the examination. The VA examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to his military service, to include in-service noise exposure based on his military occupational specialty as a combat engineer and demolition specialist. 5. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.