Citation Nr: 21062428 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-06 672 DATE: October 7, 2021 ORDER Entitlement for service connection for tinnitus is granted. Entitlement for service connection for a psychiatric disorder to include depression, is denied. REMANDED Entitlement for service connection for a heart disorder is remanded. Entitlement for service connection for a bilateral eye disorder is remanded. Entitlement for service connection for bilateral hearing loss is remanded. Entitlement for service connection for diabetes mellitus, type II is remanded. Entitlement for service connection for a kidney disorder, to include as due to diabetes mellitus, type II is remanded. Entitlement for service connection for peripheral neuropathy of the bilateral upper extremity is remanded. Entitlement for service connection for peripheral neuropathy of the bilateral lower extremity is remanded. Entitlement for service connection for hypertension is remanded. Entitlement for service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record reflects that the Veteran's tinnitus started in service and continued. 2. There is no competent medical evidence reflecting that the Veteran has an acquired psychiatric disorder due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to June 1967. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in May 2021 before the undersigned Veterans Law Judge (VLJ). The record was held open for 90 days for the submission of additional evidence. A copy of the transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that he is entitled to service connection for tinnitus. He reported ringing in the ears, which started in service in El Paso, Texas, while he was a launcher crewman. Tinnitus has continued since. Tinnitus is a condition that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran's reports of ringing in his ears are credible. The Veteran also credibly testified at his May 2021 Board hearing that his tinnitus started in service and continued. The Veteran's DD-214 confirms that his MOS was a missile crewman, and he received decorations for a marksman rifle. Military personnel documents note at separation that his Army Post Office (APO) address was New York. The Board finds that the Veteran had in-service hazardous noise exposure, and his statements regarding his in-service noise exposure and the ringing in his ears to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The first two elements of a service connection claim are satisfied. The Veteran was afforded a VA examination in December 2018. The Veteran reported intermittent tinnitus since the service. Soon after service, he sought treatment at a VA Hospital in New York and was given something to wash out his ears. The examiner diagnosed tinnitus and provided a negative nexus to service. He explained that the "onset of tinnitus is reported by the Veteran to be post-separation. There is no report of tinnitus in-service treatment records, at separation, or in the medical records until the time of the claim. The current literature does not support late onset noise-induced tinnitus. Tinnitus most likely related to post-military noise exposure." The Board finds this examination inadequate. The examiner did not consider the Veteran's lay statements of tinnitus starting in service and continuing or that it may have begun within one year after discharge from active service. The Veteran has consistently held that his tinnitus started in service and has continued since. Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to state that he experiences tinnitus and that it has persisted since service. Charles, 16 Vet. App. 370. The Board finds the Veteran's lay statements regarding the onset and continuity of his tinnitus to be both competent and credible. As the record shows no concurrent cause for his tinnitus, a grant based on the continuity of symptomatology is warranted. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for tinnitus. 38 U.S.C. § 5107 (b) (2012). 2. Entitlement for service connection for a psychiatric disorder to include depression, is denied. The Veteran contends that he has an acquired psychiatric disorder to include depression and anxiety resulting from service. Specifically, he avers that he became depressed in Germany. The Veteran's post-service treatment records do not show a diagnosis of depression or anxiety or any acquired psychiatric disorder. Numerous posttraumatic stress disorder (PTSD) and depression screening tests noted that the veteran consistently scored "0" and was found negative for depression and PTSD. During his Board testimony, the Veteran stated that he felt depressed and homesick while on active duty, but acknowledged that he "had not been diagnosed by the VA outpatient clinic or Houston, or that he was currently depressed or having any anxiety right now." The record contains no credible and competent evidence that the Veteran currently or at any time during the appeal period has had a diagnosis of an acquired psychiatric disorder. Thus, such a lack of a current diagnosis provides probative evidence against the claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record, as discussed above, reflects the Veteran has not been shown to have a current diagnosis of any acquired psychiatric disorder, to include depression and anxiety. 38 C.F.R. §§ 3.102. To receive compensation for a psychiatric disability, there must be a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against this claim on direct and chronic presumptive bases, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement for service connection for a heart disorder is remanded. 2. Entitlement for service connection for a bilateral eye disorder is remanded. The Veteran in July 2016 provided a timely notice of disagreement (NOD) challenging the rating decision of May 2016, which denied service connection for a bilateral eye disorder and a heart disorder. The RO, however, did not address these two issues in its December 2016 statement of the case (SOC). The claims must therefore be remanded to the RO for issuance of a SOC. 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999). The Board emphasizes that the Veteran must perfect his appeal for the issues of service connection for a heart disorder and a bilateral eye disorder in order to obtain appellate review. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202. 3. Entitlement for service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss was incurred in service. Specifically, he testified during his Board hearing that his bilateral hearing loss started while at Fort Bliss in El Paso, Texas. While his MOS was a launcher crewman, missile battalion, he was never given hearing protection. The Veteran's DD-214 shows that his MOS was also a missile crewman, and he received badges for Marksman (Rifle M-1) and Exp (Rifle M-1). The Veteran was afforded a VA audiology examination in December 2018 and found to have had bilateral sensorineural hearing loss. The examiner provided a negative nexus to service and explained that "[t]here was no significant permanent shift in hearing thresholds beyond test variability from the entrance to separation ... and there was no report of complaint/treatment for hearing decrease in STRs or at separation. The Veteran's MOS of Ammunition Specialist has a low probability of hazardous noise exposure. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology." The Board finds this examination incomplete. The examiner based his negative nexus opinion solely on the Veteran's normal hearing at separation from service and a lack of a significant permanent shift in hearing threshold. He did not address the discrepancies between the May 1962 entrance audiogram and the February 1967 separation audiogram. Additionally, he failed to consider the Veteran's role as a missile crewman and his receiving marksman badges. Thus, a new examination is warranted. 4. Entitlement for service connection for diabetes mellitus, type II is remanded. 5. Entitlement for service connection for a kidney disorder, to include as due to diabetes mellitus, type II is remanded. 6. Entitlement for service connection for peripheral neuropathy of the bilateral upper extremity is remanded. 7. Entitlement for service connection for peripheral neuropathy of the bilateral lower extremity is remanded. 8. Entitlement for service connection for hypertension is remanded. The Veteran credibly and competently testified that he had been a diabetic for over 30 years and that his disability developed right after service. He espoused the theory that as a result of he had gas training in Basic Training, he was exposed to Agent Orange. As the Veteran's DD-214 does not show service in Vietnam or the DMZ in Korea during the appropriate timeframes, nor does he so contend, presumptive service connection is unavailable. Additionally, the Veteran argues that his peripheral neuropathy of the bilateral upper and lower extremities and kidney disorder were incurred in service. In the case of his kidney disorder and hypertension, he also argues a secondary connection to his diabetes mellitus, type II. The Veteran testified that he was seen in sick call for urinary issues, headache, blurred vision, and numbness and tingling in the foot in service. He sought treatment for his conditions soon after service by a private clinician in New York. His STRs show numerous clinical visits. For example, treatment notes dated in March 1963, April 1963, and June 1963 note complaints and treatment for headaches and stomach pain. A treatment note dated in April 1963 indicates a complaint of a hand wound, which leaked discharge. In April 1964, he was treated for a complaint of urethral discharge, and an August 1964 Clinical Record Cover Sheet noted a diagnosis of acute urethritis, gonococci. A treatment note dated in November 1963 note "feet [and] reduced supply duty." An electrocardiographic record dated in September 1966 showed a blood pressure reading of 120/90. The Veteran has not been afforded an examination to determine the possible etiology of his diabetes mellitus, type II, peripheral neuropathy of the bilateral upper and lower extremities, kidney, and hypertension. VA's duty to assist includes providing an examination regarding a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury, or event, but there is insufficient information to decide the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, VA examinations are warranted. Furthermore, the record indicates that some of the Veteran's treatment records may be missing. In an April 2016 statement, he reported that he had treatment at "Michael DeBakey in Houston [and they] would have proof of all my illnesses listed above." Also, during his Board hearing, he testified that he had been receiving treatment for his disabilities from Dr. A. R. at St. Elizabeth's Medical Association in Beaumont, Texas. As these records are absent from the claims file, the RO should obtain them. 9. Entitlement for service connection for erectile dysfunction is remanded. During his Board hearing, the Veteran testified that his erectile dysfunction was a result of taking medications for diabetes mellitus, type II, and hypertension. As service connection for diabetes mellitus, type II, and hypertension are being remanded herein, the issue of service connection for erectile dysfunction is also remanded as inextricably intertwined with the remanded cases. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the issues are REMANDED for the following action: 1. Send the Veteran and his agent a SOC addressing the issues of service connection for a heart and bilateral eye disorder. 2. Obtain and associate any outstanding VA and private treatment records with the claims file, especially from VAMC Michael E. DeBakey in Houston, Texas, and from Dr. A. R., at St. Elizabeth's Medical Association in Beaumont, Texas. 3. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of his bilateral hearing loss. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. Entrance audiological examination of May 1962. b. Separation examination of February 1967. c. DD-214 noting badges for Marksman (Rifle M-1) and Exp (Rifle M-1). d. May 2021 Board hearing testimony. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner should not base the opinion solely on the lack of a significant shift in hearing thresholds or the Veteran's normal hearing examination at separation. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 4. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of his diabetes mellitus, type II. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated March 1963, April 1963, and June 1963 noting complaints and treatment for headaches and stomach pain. b. STR dated in April 1963, noting a complaint of a hand wound leaking discharge. c. STR dated in November 1963, noting "feet [and] reduced supply duty." d. An electrocardiographic record dated in September 1966, noting a blood pressure reading of 120/90. e. The Veteran's May 2021 Board testimony. The clinician is asked to opine as to the following: a. Whether the Veteran's diabetes mellitus, type II is at least as likely as not (50 percent or greater probability) began during active service or related to any incident therein or manifested to a compensable degree within one year after discharge from service. If and only if a positive opinion is provided for diabetes mellitus, type II, the examiner must also opine as to: b. Whether the Veteran has a kidney disorder that is at least as likely as not (50 percent or greater probability) caused by his diabetes mellitus, type II. c. Whether the Veteran's kidney disorder is at least as likely as not (50 percent or greater probability) aggravated by his diabetes mellitus, type II. d. Whether the Veteran has peripheral neuropathy of the bilateral upper AND bilateral lower extremities that is at least as likely as not (50 percent or greater probability) caused by his diabetes mellitus, type II. e. Whether the Veteran has peripheral neuropathy of the bilateral upper AND bilateral lower extremities that is at least as likely as not (50 percent or greater probability) aggravated by his diabetes mellitus, type II. f. Whether the Veteran has hypertension that is at least as likely as not (50 percent or greater probability) caused by his diabetes mellitus, type II. g. Whether the Veteran has the Veteran has hypertension that is at least as likely as not (50 percent or greater probability) aggravated by his diabetes mellitus, type II and/or medications taken therefor. h. Whether the Veteran has erectile dysfunction that is at least as likely as not (50 percent or greater probability) caused by his diabetes mellitus, type II and/or medications taken therefor. i. Whether the Veteran has erectile dysfunction that is at least as likely as not (50 percent or greater probability) aggravated by his diabetes mellitus, type II and/or medications taken therefor. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. The clinician is reminded that for a secondary service connection claim, a VA medical opinion should not combine causation and aggravation; separate findings and rationales should be provided for each one. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). 5. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of his kidney disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STR dated in April 1964 noting treatment for a complaint of urethral discharge and an August 1964 Clinical Record Cover Sheet noting a diagnosis of acute urethritis, gonococci. b. The Veteran's May 2021 Board hearing testimony. The clinician is asked to opine as to whether the Veteran has a kidney disorder that is at least as likely as not (50 percent or greater probability) began during active service or related to any incident therein. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 6. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of peripheral neuropathy of the bilateral upper AND lower extremities. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STR dated in November 1963, noting "feet [and] reduced supply duty." b. The Veteran's May 2021 Board hearing testimony. The clinician is asked to opine as to: a. Whether the Veteran has peripheral neuropathy of the bilateral upper extremity that is at least as likely as not (50 percent or greater probability) began during active service or related to any incident therein. b. Whether the Veteran has peripheral neuropathy of the bilateral lower extremity that is at least as likely as not (50 percent or greater probability) began during active service or related to any incident therein. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 7. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of his hypertension. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated March 1963, April 1963, and June 1963 noting complaints and treatment for headaches and stomach pain. b. STR dated in April 1963, noting a complaint of a hand wound leaking discharge. c. An electrocardiographic record dated in September 1966, noting a blood pressure reading of 120/90. d. The Veteran's May 2021 Board hearing testimony. The clinician is asked to pine as to the following: a. Whether the Veteran has hypertension that is at least as likely as not (50 percent or greater probability) began during active service or related to any incident therein or manifested to a compensable degree within one year after discharge. If and only if a positive opinion has been provided for hypertension, the examiner must also opine as to the following: b. Whether the Veteran has diabetes mellitus, type II, that is at least as likely as not (50 percent or greater probability) caused by his hypertension. c. Whether the Veteran has diabetes mellitus, type II, that is at least as likely as not (50 percent or greater probability) aggravated by his hypertension. d. Whether the Veteran has erectile dysfunction that is at least as likely as not (50 percent or greater probability) caused by his hypertension. e. Whether the Veteran has erectile dysfunction that is at least as likely as not (50 percent or greater probability) aggravated by his hypertension. The clinician is reminded that for a secondary service connection claim, a VA medical opinion should not combine causation and aggravation; separate findings and rationales should be provided for each one. Atencio, 30 Vet. App. 74, 90 (2018). The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 8. Then, readjudicate the claims. If any of the above decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the appropriate time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.