Citation Nr: 21066818 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-25 621A DATE: November 2, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran's tinnitus is related to his in-service noise exposure due to his military occupational specialties and associated duties. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1979 until his honorable discharge in November 1982, and then served full-time on active duty with the Army National Guard from August 1988 until his honorable discharge in May 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for posttraumatic stress disorder (PTSD) and tinnitus. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service connection for tinnitus is granted. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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 be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). The Veteran testified at his July 2021 Board hearing that he experienced ringing and buzzing in his ears during his first tour of active-duty service. During his second tour of active-duty service, the ringing and buzzing became more pronounced. The Board finds the Veteran's testimony credible and probative. Therefore, the Board finds the Veteran had tinnitus during the pendency of the claim. The first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran's military occupational specialty (MOS) during his first tour of active-duty service was as an equipment records/parts specialist. He was required to take parts to the aviation fleet, which exposed him to jet engines and other loud noises in the flight line. The Veteran's MOS during his second tour of active service was as a unit supply specialist. He testified that his MOS placed him within the field artillery unit. He was required to take supplies to the field where artillery was constantly being fired. While he used ear protection, it was insufficient to block out all of the sound to which he was exposed. There were also many times he did not have ear protection, particularly when working around the artillery unit and firing weapons himself. The Board finds his testimony credible and probative as to his in-service noise exposure. Therefore, the Board finds the second element, and in-service onset or event, is satisfied. Third element: A causal link The Veteran received two VA examinations addressing his tinnitus, one in July 2016 and another in February 2018. The July 2016 VA examiner opined that she could not provide an etiologic opinion of tinnitus without resorting to speculation. She relied on the absence of an enlistment audiogram, which prevented her from comparing whether any auditory threshold shifts occurred during service. The Board finds the opinion inadequate because a lack of objective evidence is not a sufficient rationale without explaining why the Veteran's subjective statements are insufficient to render an opinion, particularly in light of his MOS duties. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"). The Board finds the same is true of the February 2018 VA examiner's opinion in which the examiner also relied on a lack of objective evidence and did not address the Veteran's lay statements. Despite the VA opinions, the Board finds the Veteran has offered credible and probative evidence describing continuity of his tinnitus symptoms such that a nexus can be established. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (notwithstanding a showing of continuous symptoms since service, medical evidence is still required to demonstrate a nexus between a current disability and the continuous symptoms "unless such a relationship is one as to which a lay person's observation is competent[.]"). As stated, tinnitus is a condition capable of lay observation. The Veteran's testified during his August 2021 Board hearing that he experienced symptoms of tinnitus in service, and those symptoms continued at the time of his separation from service in 1995, and they have continued to the present. The Board finds his testimony credible and probative. Therefore, based on the continuity of symptoms, the Board concludes that his tinnitus had its onset in or is otherwise related to in-service noise exposure associated with his MOS duties. Accordingly, as each element for service connection is satisfied, service connection for tinnitus is granted. REASONS FOR REMAND Service connection for an acquired psychiatric disorder is remanded. During his August 2021 Board hearing, the Veteran's representative pointed out that the Veteran's initial claim was one for a mental health condition, not specifically PTSD. The VA Regional Office limited its adjudication only to PTSD. The Board notes that the Veteran subsequently submitted a claim for service connection for anxiety and depression in February 2021, which a VA Regional Office denied. Nevertheless, the Board finds it is appropriate to expand the Veteran's claim in the present case to include any acquired psychiatric disability, which may include PTSD, anxiety, and depression due to the initial filing for a "mental health condition." See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). At his August 2021 Board hearing, the Veteran's representative asserted that the Veteran was not necessarily seeking service connection for PTSD. Instead, he testified that due to his service-connected ankle disabilities, he was worried about the potential for additional surgeries. In turn, his worries manifested as anxiety and depression, which were documented in VA treatment records in 2016. Hence, his theory for service connection is that he has an acquired psychiatric disability that is secondary to his service-connected ankle disabilities. Two VA examinations are of record addressing the Veterans' claim for service connection for an acquired psychiatric disability. In July 2016, a VA examiner diagnosed the Veteran with PTSD and opined that "it is less likely than not that the [V]eteran's mental disorder (PTSD) is proximately due to or the result of bilateral chronic [Achilles] tendonitis." The examiner, however, offered no other opinion addressing a diagnosis of any other mental health condition. A February 2018 VA examiner also only diagnosed the Veteran with PTSD and came to a similar opinion as to the etiology of his PTSD. The Board finds that the Veteran's medical records indicate diagnoses of anxiety and depression in addition to PTSD in 2016. See January 2016 VA Psychology Outpatient Note. No medical professional as addressed whether the Veteran's anxiety and depression are related to his concerns with his ankle disabilities. As such, remand is required to obtain a VA examination and opinion. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of any acquired psychiatric disorders, other than posttraumatic stress disorder (PTSD). The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Please identify the Veteran's current psychiatric disabilities, other than PTSD, if any. (b.) For each identified psychiatric disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran's psychiatric disorder had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (c.) For each identified psychiatric disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran's psychiatric disorder was caused by (proximately due to or as the result of) of his service-connected ankle disabilities. (d.) For each identified psychiatric disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran's psychiatric disorder was aggravated by his service-connected ankle disabilities. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. (e.) In addition, the examiner is asked to provide a retrospective opinion. Specifically, the examiner is asked to assume that the Veteran had a valid diagnosis of anxiety and depression under the DSM-5 in January 2016 per his VA medical records. Please offer an opinion as to whether: a. It is at least as likely as not (50 percent probability or more) that the Veteran's anxiety and/or depression was caused by (proximately due to or as the result of) his service-connected ankle disabilities. b. It is at least as likely as not (50 percent probability or more) that the Veteran's anxiety and/or depression was aggravated by his service-connected ankle disabilities. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) January 2016 and February 2016 VA Psychology Outpatient Notes that document diagnoses of anxiety, depression, and PTSD under the DSM-5. And which record the Veteran's lay statements about his concerns with his ankle disabilities and potential for surgery, which he asserted caused/aggravated his psychiatric disorders. (b.) The Veteran's August 2021 testimony before the Board about the effects his ankle disabilities, including concern for potential surgeries, have had on his mental state. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his psychiatric symptoms, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a psychiatric disorder in service or the assertion that the Veteran's service-connected ankle disabilities led to a psychiatric disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.