Citation Nr: 20036746 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 17-62 062 DATE: May 28, 2020 ORDER The claim of entitlement to service connection for tinnitus is denied. The claim of entitlement to service connection for asthma is denied. REMANDED The claim of entitlement to service connection for a right foot/toe disorder is remanded. The claim of entitlement to service connection for a right shoulder disorder is remanded. The claim of entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran has not been shown to have tinnitus that manifested in service or within one year thereafter or that is otherwise etiologically causally or etiologically related to his military service. 2. The Veteran’s asthma did not manifest in service and is not otherwise causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for establishing entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1995 to January 1999, with additional service in the Air Force Reserve. In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran initially submitted a claim of entitlement to service connection for anxiety and depression. Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The medical evidence of record reflects additional psychiatric diagnoses. As such, the Board has recharacterized the issue. Id. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, which is considered an organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus. He contends that his tinnitus developed as a result of exposure to loud noise in the mess hall and gym during service. Service treatment records are silent as to treatment for or complaints of tinnitus. A March 1995 hearing conservation program record showed that the Veteran was fitted for hearing protection and was instructed as to the purpose of hearing protection. On a November 1998 report of medical assessment, the Veteran denied having suffered an injury or illness while on active duty for which he did not seek medical care. The Veteran underwent a VA examination in May 2017. He reported that tinnitus began around 1998 and that he was unsure as to how it first occurred. The examiner concluded that there was no diagnosis of tinnitus because the condition had resolved. The examiner was unable to provide an etiological opinion due to the lack of a hearing loss diagnosis and the Veteran’s inconsistent description of tinnitus symptoms. The examiner noted the Veteran’s reports that the tinnitus occurred once every two to three months and lasted for a few minutes at a time. Therefore, the examiner determined that an opinion could not be rendered without resorting to speculation. At the March 2020 Board hearing, the Veteran testified that he experienced loud noise exposure from steam carts, pots, and pans during service. He stated that he was not always provided hearing protection during service. The Veteran testified that his tinnitus started during service and that he currently experienced tinnitus symptoms. Upon consideration of the evidence above, the Board finds that the preponderance of the evidence is against service connection for tinnitus. The earliest evidence of tinnitus is in December 2016 when he filed his claim, which is more than 15 years after his separation from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Moreover, the Veteran has not submitted a medical opinion indicating that his tinnitus is related to in-service noise exposure. Significantly, the May 2017 VA examiner was unable to relate the disorder to service without resorting to speculation because of the Veteran’s inconsistent reports of tinnitus symptoms and the lack of a hearing loss diagnosis. There is no other opinion of record addressing the etiology of the Veteran’s tinnitus. Although the Veteran reported that his tinnitus symptoms started during service, the medical evidence doesn’t show complaints of tinnitus until years after service. The Board acknowledges that the Veteran is competent to report the presence of observable symptoms, such as ringing in his ears. 38 C.F.R. § 3.159(a)(2) (2018); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to identify tinnitus). Therefore, his lay reports may be sufficient to prove his tinnitus claim if they are credible and consistent with the other evidence of record. Here, however, the Board finds that the Veteran’s lay statements regarding the presence of tinnitus offered in support of his current claim are not credible and are inconsistent with the other evidence of record. As noted above, the earliest indication of tinnitus was in December 2016, more than 15 years after service. Service treatment records from his Air Force Reserve service did not show any complaints of tinnitus. During the May 2017 VA examination he described symptoms that occurred every two to three months and at the time of the examination it was noted that his tinnitus had resolved. In September 2017, the Veteran stated that his tinnitus was not constant. At the March 2020 Board hearing he stated that he had tinnitus symptoms during service and that he had current complaints of tinnitus symptoms. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds the Veteran’s statements regarding in-service incurrence to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords no probative weight to such contentions. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable, and the claim of service connection for tinnitus must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for asthma. The Veteran asserts that his asthma symptoms started during service. Service treatment records do not include any complaints of or treatment for asthma. On a June 2004 health risk assessment, the Veteran denied shortness of breath at rest, walking, or with only moderate exertion. He also stated that he had never been told that he had asthma. Post-service treatment records include a May 2014 private medical record. The Veteran presented with shortness of breath after working out and intercourse. He described a gradual onset of his symptoms. A May 2014 spirometry test was used to diagnose asthma. In September 2017, the Veteran stated that his asthma was related to physical conditioning in the dry, white sands of Holloman Air Force Base in New Mexico. At the March 2020 hearing, he testified that his asthma symptoms started in 1997. After a careful review of the evidence, the Board concludes that the preponderance of the evidence is against the claim. While the evidence shows that the Veteran has a current diagnosis of asthma, there is no competent and credible evidence that the disorder was incurred in service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498. In the present case, the Veteran testified that his asthma started in 1997 during service. However, medical records during his Air Force Reserve service shows that he denied shortness of breath symptoms and asthma in June 2004. The medical evidence did not document reports of shortness of breath and a diagnosis of asthma symptoms until 2014, approximately 15 years after service. The May 2014 private treatment record noted a gradual onset of asthma symptoms and did not document any report that the symptoms started during service. Therefore, the Veteran’s current statements, made in connection with his pending claim for VA benefits, that his asthma was incurred during service are inconsistent with the contemporaneous evidence and, therefore, are not credible. Additionally, there is no evidence indicating that the Veteran’s disorder was related to service or a service-connected disorder. The record does not contain a competent medical opinion linking the disorder to service. As noted above, the Veteran contends that his asthma was caused by physical conditioning in the dry, white sands of Holloman Air Force Base in New Mexico . In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent evidence is not required to indicate that the current disability may be associated with service.” Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 12. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection 38 U.S.C. § 5103A (d)(2)(B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Accordingly, the Veteran’s statements are no more than conclusory without anything more. As such, the Veteran’s statements do not trigger VA’s duty to provide an examination or obtain a medical opinion in this case. Although the Veteran might sincerely believe that his asthma is related to service, the record does not suggest that, as a layperson, he is competent to determine the cause of his disorder. Therefore, Board finds the preponderance of the evidence indicates the Veteran has not satisfied the requirements to warrant entitlement to service connection for asthma. Accordingly, service connection is not warranted for asthma. In reaching this decision, the Board has considered the doctrine of reasonable doubt in reaching this determination; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. The claim of entitlement to service connection for a right foot/toe disorder is remanded. Please see discussion in paragraph 2. 2. The claim of entitlement to service connection for a right shoulder disorder is remanded. The Veteran seeks service connection for a right foot/toe disorder and a right shoulder disorder. The Veteran’s September 1994 enlistment examination noted asymptomatic pes cavus. The service treatment records are otherwise silent regarding foot symptoms. In May 2017, he was afforded a VA examination for his right foot. The Veteran reported that his right foot fungal infection symptoms started in 2000 while he was completing training exercises that involved running in wet boots. He also stated that he experienced right great toe pain following a motor vehicle accident in 2002 during service. The Veteran reported that he was treated at Las Cruces Hospital following the accident. The examiner diagnosed metatarsalgia and opined that the disorder clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated beyond its natural progression by service. The Board finds that the May 2017 VA medical opinion is inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312. While the examiner used the language “clear and unmistakable evidence,” the examiner did not provide supportive rationale to rebut the presumption of soundness. While there is evidence of pes cavus prior to service, the examiner did not provide ay rationale regarding whether the currently diagnosed metatarsalgia clearly and unmistakably preexisted service. Therefore, the Board finds that a remand is required to obtain another VA medical opinion. Additionally, the Veteran asserts that he injured his right foot/toe and right shoulder during a motor vehicle accident that occurred during service in 2002. The Board notes that the Veteran served periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) in the Air Force Reserve in February 2002, April 2002, and May 2002. A review of the service treatment records does not indicate that the Veteran was involved in a motor vehicle accident during his active duty service. However, on remand, an attempt should be made to obtain any outstanding service treatment records from the Air Force Reserve service. Additionally, he reported that he was treated at Las Cruces Hospital following the accident. On remand, the RO must attempt to obtain such records. 3. The claim of entitlement to service connection for a psychiatric disorder is remanded. With respect to the Veteran’s psychiatric disorder, the August 2017 and April 2018 VA psychiatric examination reports noted that the Veteran was treated by a private psychologist. It does not appear that such records have been associated with the Veteran’s electronic claims file. As the records are relevant to the Veteran’s claim, the Board finds that a remand is required to obtain such records. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include outstanding service treatment records from the Veteran’s Air Force Reserve service, medical records from Las Cruces Hospital relating to the claimed motor vehicle accident, and mental health records from the Veteran’s private psychiatrist. If the RO or AMC deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran’s right foot/toe disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must identify all right foot/toe disorders present during the period of the claim. Following an examination of the Veteran, and a thorough review of the record, the appropriate physician is requested to provide an opinion as to the following: (a) With respect to each right foot/toe disorder, the examiner should state an opinion as to whether it clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran’s entrance onto active duty. (b) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether there is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting disorder did not permanently increase in severity as a result of the Veteran’s active duty service. (c) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran’s entrance onto active duty, then the examiner should state an opinion as to whether it is at least as likely as not that the disorder is directly related to the Veteran’s active duty service, or was caused or permanently aggravated beyond natural progression as a result of a period of ACDUTRA or by any injury sustained during a period of INACDUTRA. The examiner must consider and discuss the Veteran’s statements concerning a 2002 motor vehicle accident, his testimony regarding his military duties, his post-service occupational duties, and the post-service medical records regarding the onset of the right foot/toe symptoms. The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.