Citation Nr: 21064029 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-67 424 DATE: October 18, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for right knee condition is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for low back condition is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for sleep deprivation is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for left foot condition is remanded. Entitlement to service connection for right ankle/foot condition is remanded. Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for right shoulder condition is remanded. Entitlement to service connection for low back condition is remanded. Entitlement to service connection for heart condition is remanded. Entitlement to service connection for stomach condition is remanded. Entitlement to service connection for sleep deprivation is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and major depressive disorder, is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for low back condition. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the May 2011 rating decision became final. At the time of the May 2011 rating decision, the record did not contain the Veteran's assertion that his low back condition is related to his 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 3. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 2. In a July 2013 rating decision, the AOJ denied the Veteran's claims for service connection for tinnitus, right knee condition, and sleep deprivation. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the July 2013 rating decision became final. 3. At the time of the July 2013 rating decision, the record did not contain the Veteran's assertion that his tinnitus began in service and has continued to the present. See April 2021 Board Hearing Tr. at 8-9. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 4. At the time of the July 2013 rating decision, the record did not contain the Veteran's assertion that his right knee condition is related to his 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 3. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 5. At the time of the July 2013 rating decision, the record did not contain the Veteran's sleep deprivation may be related to his now service-connected tinnitus. See April 2021 Board Hearing Tr. at 8. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 6. The Veteran's tinnitus began in service and has continued to the present. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for low back condition. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 19.21 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 19.21 (2020). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for right knee condition. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 19.21 (2020). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep deprivation. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 19.21 (2020). 5. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1995. He appeals a December 2014 rating decision by the AOJ. A Board hearing was held in April 2021. A transcript is of record. The Veteran filed a claim for service connection for PTSD. See November 2013 VA Form 21-526. As the Veteran has also been diagnosed with anxiety disorder and major depressive disorder, the Board has recharacterized the issue to be for service connection for any acquired psychiatric disorder to ensure that all potential diagnoses related to mental disorders are considered. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In addition, the Veteran filed a claim for service connection for his feet. See November 2013 VA Form 21-526. As there is a diagnosis in the record of a right ankle condition, the Board has recharacterized the issue to be for service connection for any right foot/ankle condition to ensure that all potential diagnoses related to the foot and ankle are considered. See Clemons, 23 Vet. App. at 5. Service Connection Tinnitus A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Tinnitus has been interpreted as such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Veteran has tinnitus. See April 2021 Board Hearing Tr. at 8-9. He contends that his tinnitus began in service and has continued since service to the present. Id. The Board finds that the Veteran continued to experience tinnitus from his time in service to the present. The Veteran is competent to report that he experienced tinnitus though he did not seek treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements are credible and entitled to probative weight, as they are internally consistent. Further, gaps in treatment are not the same as gaps in symptoms. The presence of the former does not imply the presence of the latter. Accordingly, the Board finds that the Veteran's claim for service connection for tinnitus has met the relaxed evidentiary requirements under 38 C.F.R. § 3.303(b). Therefore, the criteria for service connection for tinnitus have been met. REASONS FOR REMAND 1. Left and Right Knee, Left Foot, Right Ankle/Foot Ankle, Left and Right Shoulder, Low Back, and Heart The Board notes that at the April 2021 Board hearing, the Veteran identified relevant outstanding private treatment records from Rehab Solutions in Dacatur, Georgia. See April 2021 Board Hearing Tr. at 29. The Veteran reported at the hearing that he submitted the records from Rehab Solutions. Id. However, a review of the record illustrates that there are no records from Rehab Solutions in the claims file. The Veteran stated that he did physical therapy for his low back condition and his extremities. Id. at 28. Notably, regarding the Veteran's heart condition claim, the Veteran stated at his Board hearing that the physical therapy records at Rehab Solutions document his heart condition. Id. at 27. Thus, a remand is required to allow VA to obtain authorization and request these records as they may be relevant to the remanded claims herein. 2. Bilateral Hearing Loss The Board acknowledges that a July 2014 letter from QTC Medical Services illustrates that the Veteran was scheduled for VA audiological examinations in April 2014 and May 2014, but he missed the examinations. The Veteran reported at his April 2021 Board hearing that his family members told him while in the service that he had difficulties hearing. See April 2021 Board Hearing Tr. at 9-10. Furthermore, an April 2013 VA treatment record contains a diagnosis of right ear perforated tympanic membrane. Notwithstanding the reported missed VA examinations in 2014, the Board finds that a remand is required to afford the Veteran a VA audiological examination to determine the nature and etiology of the Veteran's reported bilateral hearing loss given the evidence of in-service noise exposure and the reports that his hearing loss began in service since the record contains no competent and credible evidence that the Veteran currently has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. 3. Sleep Deprivation The Veteran contends his sleep deprivation is due to his now service-connected tinnitus and his pain from his injuries from the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 15. A remand is required to obtain a VA opinion regarding whether the Veteran's service-connected tinnitus has caused or aggravated his sleep deprivation. 4. TBI The Board cannot make a fully-informed decision on the issue of entitlement to service connection for TDIU because no VA examiner has opined whether the Veteran has a TBI that is related to his service. A January 2014 VA treatment record contains a positive screen for TBI, and the Veteran has alleged he has a TBI due to his 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. Thus, a VA TBI examination is needed upon remand. 5. Acquired Psychiatric Disorder The Veteran underwent VA examination in December 2014 and December 2017 for an evaluation of his PTSD. The December 2014 VA examiner found that the examination did not support a diagnosis of PTSD. See December 2014 VA examination report at 8. The December 2017 VA examiner found that the Veteran did not report stressors or symptoms consistent with a PTSD diagnosis. See December 2017 VA examination report at 9. The December 2017 VA examiner noted a November 2013 provisional diagnosis of PTSD, and the examiner noted multiple other medical records that did not contain diagnoses of PTSD. Id. at 4. However, the record includes multiple diagnoses of PTSD beginning in November 2013. In addition, the Veteran contended at his Board hearing that his PTSD is related to his 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 20. The 1991 stressor has not been addressed by a VA examiner. Therefore, an additional VA examination and opinion are necessary to determine the nature and etiology of any acquired psychiatric disorder. 6. Stomach Condition The Veteran contends he is entitled to service connection for stomach condition in part due to exposure to ionizing radiation in service. See April 2021 Board Hearing Tr. at 22. Alternatively, the Veteran contends his stomach condition is due to food poisoning in service. Id. In addition, he contends his stomach contends his stomach condition his due to service in Southwest Asia. See June 2014 VA Form 21-0781. The Board notes first that the provisions of 38 C.F.R. § 3.309(d) do not apply to the Veteran's case because the Veteran's stomach condition, diagnosed as gastroenteritis, is not a disease specific to radiation-exposed Veterans. See 38 C.F.R. § 3.309(d)(2). Further, the provisions of 38 C.F.R. § 3.311 do not apply to the Veteran's case because the Veteran's gastroenteritis is not a "radiogenic disease," and the Veteran has not cited or submitted competent scientific or medical evidence that gastroenteritis is a radiogenic disease. See 38 C.F.R. § 3.311(b)(2), (4). However, the November 2017 VA opinion as to whether the Veteran's stomach condition is directly related to his service contains inadequate rationale as the examiner focused solely on the lack of treatment since the in-service diagnosis of gastroenteritis. Furthermore, there is no discussion in the opinion regarding whether the Veteran's stomach condition is related to his Southwest Asia service from August 1, 1991 to October 31, 1991. Thus, an additional VA opinion is necessary to adequately evaluate the Veteran's claim. In addition, given the Veteran's Southwest Asia service and the record being unclear whether the Veteran has a functional gastrointestinal disorder in accordance with 38 C.F.R. § 3.317(a)(2), an additional VA examination is needed to adjudicate the Veteran's claim. The Board acknowledges the November 2017 VA examination report that reflects that the Veteran has symptoms of abdominal pain, recurrent nausea, and recurrent vomiting. The Veteran also reported having blood in his stool ever since his condition began in 1991, and he reported having diarrhea stools every time he eats or drinks. Thus, an examination report that properly evaluates all functional gastrointestinal disorders should be completed upon remand. 7. Low Back Condition In addition to the remand for records as noted above, the Veteran contends his low back condition is due his 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 11. A June 2014 lumbar spine X-ray showed grade one anterolisthesis at L5/S1 and mild to moderate facet arthrosis in the lower lumbar spine. Thus, a remand is required to obtain a VA opinion as to the etiology of the Veteran's low back condition. 8. Right Ankle/Foot Condition In addition to the remand for records as noted above, following November 2017 right ankle and foot VA examinations, the VA examiner opined that it is less likely than not that the Veteran's right ankle and foot conditions are related to his service. However, a review of the November 2017 VA opinions illustrates that the examiner focused on the lack of chronicity of care since the in-service notations of a right lower ankle/foot condition. Thus, an additional VA opinion is necessary to adequately evaluate the Veteran's claim. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for the claims being remanded herein, including from Rehab Solutions, that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his attorney should be notified, and the record clearly documented. 2. After completing the development above, schedule the Veteran for an examination from an appropriately qualified VA examiner to determine the nature and etiology of any bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to, and be reviewed by the examiner. After the record review and the examination, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's bilateral hearing loss, was incurred in, or is otherwise related to, his service, to include conceded in-service noise exposure while serving on the U.S.S. Long Beach? Is the etiology or pathophysiology of the Veteran's hearing loss not conclusive as to this particular Veteran? In rendering the opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's sleep deprivation. The evidentiary record, including a copy of this remand, must be made available to, and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's sleep deprivation is related to his service? B. Is it at least as likely as not that the Veteran's sleep deprivation was caused or aggravated by his service-connected tinnitus? C. If the Veteran's sleep deprivation is associated with a known clinical diagnosis, is the etiology or pathophysiology of the condition not conclusive as to this particular Veteran? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule the Veteran for an examination from an appropriately qualified VA examiner to determine the nature and etiology of the Veteran's claimed TBI and acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to, and be reviewed by the examiner. After the record review and the examination, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's claimed TBI, was incurred in, or is otherwise related to, his service, to include the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach? The examiner is directed to the January 2014 VA treatment record containing a finding of a positive screen for TBI. B. Does the Veteran have a diagnosis of PTSD in accordance with the pertinent DSM criteria? In providing an opinion on this question, the examiner is asked to address the Veteran's alleged stressor of the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach. See April 2021 Board Hearing Tr. at 20. Additionally, the examiner is asked to consider and discuss the notations in VA treatment records reflecting diagnoses of PTSD. C. If PTSD is diagnosed, is it at least as likely as not that such is related or attributable to his military service, including the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach? D. For any psychiatric diagnosis other than PTSD, to include anxiety disorder and major depressive disorder, is it at least as likely as not that such diagnosis other than PTSD is related to the Veteran's service. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Schedule the Veteran for an examination from an appropriately qualified VA examiner to determine the nature and etiology of the Veteran's stomach condition. The evidentiary record, including a copy of this remand, must be made available to, and be reviewed by the examiner. After the record review and the examination, the examiner is asked to respond to the following inquiries: A. The examiner should note, and detail all reported symptoms of any functional gastrointestinal disorder. B. The examiner should specifically state whether the Veteran's symptoms are attributable to a known clinical diagnosis (including the diagnosis of gastroenteritis) or are attributable to a functional gastrointestinal disorder. C. If any symptoms associated with the claimed stomach condition are not determined to be associated with known clinical diagnoses, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness. D. If a known clinical diagnosis, including gastroenteritis, is found to be responsible for the Veteran's reported ongoing symptoms, the examiner should opine whether it at least as likely as not that the Veteran's stomach condition was incurred in, or is otherwise related to, his service, to include the in-service notations of gastroenteritis and service in Southwest Asia? E. If a known clinical diagnosis, including gastroenteritis, is found to be responsible for the Veteran's reported ongoing symptoms, the examiner should opine whether the etiology or pathophysiology of the condition is not conclusive as to this particular Veteran? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. Obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's low back condition and right ankle/foot condition. The evidentiary record, including a copy of this remand, must be made available to, and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's low back condition was incurred in, or is otherwise related to, his service, to include the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach? B. Is it at least as likely as not that the Veteran's right ankle/foot condition was incurred in, or is otherwise related to, his service, to include the 1991 in-service fall down 14 stairs on the U.S.S. Long Beach? C. If a known clinical diagnosis is found to be responsible for the Veteran's reported ongoing low back and/or foot/ankle symptoms, the examiner should opine whether the etiology or pathophysiology of the condition is not conclusive as to this particular Veteran. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 7. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.