Citation Nr: 21000774 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-21 842 DATE: January 6, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a thoracolumbar spine disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for left ankle disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his thoracolumbar spine disability is at least as likely as not related to his in-service back injuries and onset of pain. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a thoracolumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to April 1988. In November 2018, the Board of Veterans’ Appeals (Board) previously denied the tinnitus and PTSD claims and remanded the spine and ankle claims. In April 2020, the Court of Appeals for Veterans Claims (Court) vacated the November 2018 Board decision with respect to the denial of the tinnitus and PTSD claims and remanded those claims for additional development. The Agency of Original Jurisdiction (AOJ) completed the remand instructions in the intervening time and again denied the spine and ankle claims. All are now before the Board for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for tinnitus Since the remand from the Court, the Veteran has provided three statements in support of his claim for tinnitus. First, his own June 2020 statement that he has had tinnitus as a sometimes high pitched buzzing in his ear since he was on active duty. Second, an August 2020 friend’s account that the friend had known the Veteran since shortly after service in 1988 and that the Veteran had reported ringing in his ears since at least 1988. Third, an August 2020 statement from the Veteran’s wife of more than 30 years stating that he had complained of tinnitus since she knew him and he always had attributed it to his military career. As tinnitus is a subjective complaint observable only by the Veteran, the Board finds that these statements taken together make it at least as likely as not that the Veteran had tinnitus from his time in service. Service connection shall be granted. 2. Entitlement to service connection for thoracolumbar spine disability The AOJ considered claims for thoracic and lumbar spine conditions separately; however, the examinations and opinions indicated that the Veteran’s current disability is better characterized as a single thoracolumbar spine disability and the Board will recharacterize it as such. The Board previously remanded this claim for an additional examination. VA examined the Veteran in October 2019 and the examiner opined against service connection. The examiner, however, relied on the lack of records of back problems following service, focusing in particular on the lack of objective medical evidence. In doing so the examiner improperly conflated the lack of medical evidence with the lack of symptoms. The Veteran reported symptoms of lower back pain during this time period which he corroborated with statements from others. It is not clear from the record whether the examiner would offer the same opinion if the continued symptoms were considered. Remand is not necessary, however, because the Veteran provided an opinion from his neurosurgeon that considered the lay and medical evidence and found that it was at least as likely as not that the Veteran’s current spine disabilities had their initial onset in service as evidenced by the nature and circumstances of his service (airborne training), his competent report of in-service injury, and his report of back pain in service. As this opinion considered the lay evidence of symptoms it outweighs the VA examination. Service connection shall be granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. The Court remanded the Veteran’s PTSD claim stating that the Board did not explain why it could not seek corroboration of the fatal electrocution reported by the Veteran. The AOJ originally found that the Veteran’s stressors were not verifiable because he did not provide a time period or information about the service member that could be used to verify his account. As the Veteran has now provided additional details, the AOJ should attempt to verify the death by electrocution of a squad leader in Signal Company 10th Special Forces Group at Fort Devens, MA in either June or July 1987. The Veteran’s representative suggested in an August 2020 letter that the Veteran’s claim for PTSD should be read to encompass a claim for depression secondary to the Veteran’s lumbar spine and ankle disabilities. Although the Veteran is not required to competently diagnose himself when filing a claim, it is clear here that the Veteran was seeking compensation for a mental health condition directly related to in-service trauma. The claimant’s description of the claim in 2014, his statements made in support of the claim since filing, and the information obtained by VA demonstrate that the Veteran did not consider his claim to encompass depression secondary to having other service-connected disabilities. However, for purposes of efficiency, and because service connection for a disability of the thoracolumbar spine has now been established, the matter should be appropriately developed. 2. Entitlement to service connection for left ankle disability is remanded. The Board previously remanded because the VA examiner was not clear as to whether the Veteran’s current ankle condition was related to or impacted by his in-service ankle complaints and surgery. VA obtained an additional opinion in October 2018, but unfortunately this opinion, if anything, confuses matters further. The October 2018 examiner first stated that the Veteran’s left ankle fracture existed prior to service. But it is not clear if the examiner intended to say that the pre-service ankle fracture had any relation to the Veteran’s current ankle disability. Further, the examiner’s rationale suggests that her negative opinion was based on the Veteran not having any ongoing ankle disability immediately following service. This is at odds with her providing an opinion only as to aggravation of the pre-service injury. The examination is also inadequate as the examiner did not appear to have thoroughly reviewed the claim file or the Veteran’s history. The examiner stated that there were “no objective medical records of evidence to substantiate any aggravation.” There plainly were service medical records indicating continued ankle injury and surgery. The Board does not take a position on how to weigh the records at this time, but it is undisputable that the medical records existed, and the examiner did not consider them. Although the Veteran has asserted that his in-service ankle surgery demonstrates that his ankle was aggravated during service, the surgery notes stated that the surgery may have been necessitated by a residual from the pre-service fracture. Regardless, aggravation during service is not sufficient for service connection in and of itself. The law requires that the Veteran’s current disability relate to service and not just that the Veteran had a similar disability during service. It is not clear whether his current disability began only after service or if it relates to his pre- and in-service injuries. Service connection cannot be found without more information. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressor, including the report of an enlisted squad leader or sergeant in the Signal Company 10th Special Forces Group being electrocuted in June or July 1987 at Fort Devens, Massachusetts. If more details are needed, contact the Veteran to request the information. 2. Schedule the Veteran for a mental health examination to determine the nature and etiology of any acquired psychiatric disorder. The clinician should thoroughly review the Veteran’s service medical records, post-service medical records, and lay statements contained in the record. The examiner should address the following: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. The examiner should specifically state whether the criteria for a diagnosis of PTSD have been met. If a diagnosis of PTSD is not made, the missing criteria should be identified and discussed. b. If a diagnosis of PTSD is made, the stressor(s) supporting the diagnosis should be identified. c. For any diagnosed acquired psychiatric disorder other than PTSD, the examiner should state whether it is as likely as not that: i. it had its initial onset in service or within a year of service discharge or is otherwise etiologically related to service. ii. was proximately due to the Veteran’s service-connected low back disability or any other service connected disability. iii. underwent any incremental increase in disability, regardless of its permanence, due to the service-connected low back disability or any other service connected disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. A rationale for the clinician’s opinion must be provided. The clinician should not discount a lay statement solely because it is not reflected in a medical record. If the truth or falsity of any statement made by the Veteran or a third party makes a difference to the clinician’s opinion, the clinician should identify the statement and how it would affect his or her opinion. An opinion may be given in the alternative depending on unknown facts. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current left ankle disability is at least as likely as not related to an in-service ankle injury. The clinician should thoroughly review the Veteran’s service medical records, post-service medical records, and lay statements contained in the record. The clinician should then opine whether the Veteran’s current ankle disability: (a.) Originated solely after service and is unrelated to the Veteran’s pre-service and in-service ankle injuries; (b.) Was incurred during service or was the natural progression of a disability that was incurred during service and continued to the present; (c.) Was incurred prior to service or was the natural progression of a disability that was incurred prior to service, continued to the present, and service did not affect the severity or progression of the disability; or (d.) Was incurred prior to service or was the natural progression of a disability that was incurred prior to service, continued to the present, and service did affect the severity or progression of the disability. A rationale for the clinician’s opinion must be provided. The clinician should not discount a lay statement solely because it is not reflected in a medical record. If the truth or falsity of any statement made by the Veteran or a third party makes a difference to the clinician’s opinion, the clinician should identify the statement and how it would affect his or her opinion. An opinion may be given in the alternative depending on unknown facts. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.