Citation Nr: 21068562 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-31 889 DATE: November 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a respiratory or nose condition is granted. Entitlement to service connection for an acquired psychiatric disorder, other than post-traumatic stress disorder (PTSD), is granted. Entitlement to service connection for PTSD is denied. Entitlement to service connection for alcohol abuse is denied. FINDINGS OF FACT 1. The Veteran's tinnitus is at least likely as not related to his active duty service. 2. The Veteran's right knee disability is at least likely as not related to his active duty service. 3. The Veteran's respiratory/nose condition is at least likely as not related to his active duty service. 4. The Veteran's acquired psychiatric disorder is at least likely as not related to his active duty service. 5. The Veteran does not have a current diagnosis of PTSD. 6. It is less likely than not that the Veteran's alcohol abuse is related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a respiratory/nose condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for alcohol abuse have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing conference before the undersigned. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for a 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). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. 1. Entitlement to service connection for tinnitus First, regarding a current diagnosis, the Veteran reported recurrent tinnitus in an August 2016 VA hearing loss and tinnitus examination and endorsed a constant ringing sound. Accordingly, the Board finds that the first element of service connection is met. See Shedden, supra. Second, regarding an in-service event, the Veteran testified that as a tanker, he was exposed to noise from multiple types of firearms. See Hearing Transcript, pp. 12-13. He further noted that his ears would ring for hours after finishing his duties with firearms. Id. at 13. The Board notes that the Veteran is competent to describe symptoms and events observable to his senses. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the Board has no reason to discredit the Veteran's testimony regarding his claimed tinnitus. Accordingly, the Board finds that the second element of service connection is met. See Shedden, supra. Regarding the third element of service connection, nexus, the evidence conflicts. In the August 2016 VA examination, the examiner opined that it less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. However, the examiner provided no rationale, and simply noted "no nexus." The Board assigns this opinion no probative value as the examiner did not provide any rationale in connection with the negative nexus opinion. In March 2021, the Veteran submitted a private opinion Dr. M.F., a physician. Dr. M.F. stated that the Veteran was exposed to acoustic trauma in service with gunfire and constant engine noise from heavy vehicles and that he developed bilateral tinnitus after discharge. He further stated that although tinnitus may develop at the time of significant acoustic trauma, it may also develop years later. Dr. M.F. opined that it is as likely as not that the Veteran's tinnitus was caused by in-service acoustic trauma. The Board affords the opinion by Dr. M.F. probative value, as it reflects sound rationale and a thorough understanding of the Veteran's acoustic trauma during service. Therefore, the Board finds that the evidence regarding nexus is at least in equipoise and that the third element of service connection is met. See Shedden, supra. Accordingly, service connection for tinnitus is warranted. 2. Entitlement to service connection for a right knee disability The Veteran contends that his right knee disability is due to a motor vehicle accident he experienced while serving on active duty. First, the Board notes that a May 2015 VA examiner did not diagnose the Veteran with a right knee disability. However, in the March 2021 statement, Dr. M.F. noted that the Veteran has arthritis of the right knee. Further, the Veteran has testified that he experiences trick knee, a dull constant pain, and that his knee gives out, causing him to fall. See Hearing Testimony, pp. 5, 7-8. He also stated that his private physician has directed him to take naproxen every day for his right knee. Id. at 6. He also occasionally wears a knee brace. Id. at 8. The Board further acknowledges that the unfavorable May 2015 VA examination took place over six years ago. Weighing all evidence in favor of the Veteran, the Board finds that the evidence as to a current right knee disability is a least in equipoise. Accordingly, the first element of service connection is met. See Shedden, supra. Second, the Veteran's service treatment records indicate that he experienced a motor vehicle accident in September 1989, while serving on active duty in Germany. See May 2014 STR Medical, p. 16. The treating provider noted that the Veteran had a small prepatellar superficial abrasion of the right knee. Id. at 17. Therefore, the second element of service connection is met. See Shedden, supra. Regarding nexus, the evidence conflicts. The May 2015 VA examiner provided a negative nexus statement and, as noted above, found that the Veteran did not have a current diagnosis of a right knee disability. The Board again acknowledges the significant period of time that has elapsed since this examination. In the March 2021 statement, Dr. M.F. noted that the Veteran has had continual right knee pain with significant flare-ups and that he experiences limited range of motion. He further noted that what may appear as a "bump or bruise" of the knee can be a precursor of the development of arthritis of the knee. Dr. M.F. opined that is it as likely as not that the Veteran's right knee arthritis began in service with the motor vehicle accident. The Board assigns probative value to the opinion by Dr. M.F., as it again reflects a sound rationale and thorough review of the Veteran's claims file. The Board also finds that the recency of this opinion in comparison with the VA examination in May 2015 bolsters its value. Therefore, the Board finds that the evidence as to nexus is at least in equipoise and that the third element of service connection is met. See Shedden, supra. Accordingly, service connection is warranted. 3. Entitlement to service connection for a respiratory or nose condition The Veteran contends that his respiratory or nose condition is related to a nasal fracture sustained in service. First, the Board notes that in a May 2015 examination, the Veteran was diagnosed with allergic rhinitis. Accordingly, the first element of service connection is met. See Shedden, supra. Second, regarding an in-service event, the Veteran's service treatment records reflect that the Veteran sustained a nose contusion as a result of the September 1989 motor vehicle accident. See May 2014 STR Medical, p. 16. The provider noted tenderness over the nasal bone with extreme bleeding of the nose. Id. Accordingly, the Board finds that the second element of service connection is met. See Shedden, supra. Regarding nexus, the evidence conflicts. The May 2015 VA examiner opined that it was less likely than not that the Veteran's sinus condition was related to his service. The examiner found that the condition was not related to the noted nasal contusion, as there was no evidence that the injury required re-setting. In the March 2021 statement, Dr. M.F. stated that simply because the Veteran's nose was not "set," does not necessarily mean that it was not a significant injury. He further stated that there are often internal nasal injuries, as in the Veteran's case, and that as a result of the nasal fracture with a deviated septum, the Veteran began to have rhinitis with some difficulty breathing. Dr. M.F. opined that it is as likely as not that the in-service nasal fracture was the causative factor in the development of rhinitis. The Board again finds the opinion and rationale by Dr. M.F. to be complete and probative and assigns it value. The Board also assigns little probative value to the March 2015 VA examination, as the examiner appeared to foreclose the possibility of a nexus simply because of a lack of re-setting, without further explanation of this conclusion. Therefore, the Board finds that the evidence as to nexus is at least in equipoise and the third element of service connection is met. See Shedden, supra. Accordingly, service connection is warranted. 4. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD Regarding the first element of service connection, in March 2021 the Veteran submitted an evaluation by Dr. Q.A., a licensed psychologist. Dr. Q.A. performed a clinical interview with the Veteran and reviewed his military and VA medical records. Dr. Q.A. diagnosed the Veteran with adjustment disorder with anxiety and alcohol abuse disorder in remission. Accordingly, the Board finds that the first element of service connection is met. See Shedden, supra. As to an in-service event or injury, the Veteran testified that he witnessed two stressful incidents during service. First, he stated that he witnessed the aftermath of an attempted suicide of a servicemember who served in his platoon. See Hearing Transcript, pp. 16-18. He endorsed nightmares after this incident. Id. at 19. He also discussed an incident in which he witnessed the aftermath of a servicemember killed during a tank accident. Id. at 19-20. He endorsed nervousness and rumination after this incident. Id. at 20. In the March 2021 report, Dr. Q.A. noted that the Veteran reported persistent anxiety and difficulties with interpersonal functioning in service and that these issues did not exist prior to service. Further, the Veteran reported feelings of irritability, mistrust, and worry about colleagues and their safety. The Board again notes that the Veteran is competent to describe symptoms and events observable to his senses. See Jandreau, supra. Accordingly, when resolving all doubt in favor of the Veteran, the Board finds that the Veteran is competent and credible as to the symptoms that arose during service, including nightmares, nervousness, and rumination. Therefore, the second element of service connection is met. See Shedden, supra. Regarding nexus, the Board notes that the Veteran has not undergone a VA mental conditions examination. However, Dr. Q.A. opined that it is as likely as not that the Veteran's diagnosed adjustment disorder began during his military service. The Board assigns probative value to the opinion, as it reflects that Dr. Q.A. elicited a great deal of history during the clinical interview of the Veteran and that relevant evidence in the claims file was reviewed. In the absence of any negative nexus statement of record, the Board finds that the evidence in favor of nexus is at least in equipoise and therefore finds that the third element of service connection is met. See Shedden, supra. Therefore, service connection is warranted. 5. Entitlement to service connection for PTSD The Board finds that the evidence of record preponderates against a finding that the Veteran has a current diagnosis of PTSD. In September 2014, the Veteran appeared for an evaluation with Dr. K.C., a VA staff psychologist. See Sept. 2014 CAPRI. The Veteran stated that he served as a tank gunner in Kuwait. Id. at 11. He further stated that he hit an enemy tank with four individuals inside and witnessed burned bodies with a strong smell. Id. He also stated that he witnessed the aftermath of the death of a friend who was caught between two tanks. Id. Dr. K.C. noted an impression of a history of PTSD. Id. at 14. However, the Veteran's claims file does not indicate that he served in Kuwait and there is no evidence that Dr. K.C. verified such claimed service. In the March 2021 report, Dr. Q.A. inquired with the Veteran regarding this discrepancy. The Veteran stated that he was never stationed in Kuwait and denied having combat experience. Dr. Q.A. further noted that it appeared that Dr. K.C. did not have access to the Veteran's military record and accepted the report regarding Kuwait at face value, without further verification, which resulted in the September 2014 PTSD diagnosis. Dr. Q.A. stated that the further notations of a diagnosis of PTSD in the Veteran's VA medical records were simply "carried forward" from the original diagnosis by Dr. K.C. The Board finds that as the original diagnosis of PTSD was based upon a factually inaccurate premise (that the Veteran served in Kuwait and engaged in combat), the September 2014 report by Dr. K.C. provides no probative value as to a current diagnosis of the condition. Further, there is no other competent PTSD diagnosis of record, as Dr. Q.A. declined to make a PTSD diagnosis in the March 2021 report. As noted above, Dr. Q.A. diagnosed the Veteran with adjustment disorder with anxiety and alcohol abuse disorder in remission. Accordingly, as the first element of service connection is not met, service connection is not warranted. See Shedden, supra. 6. Entitlement to service connection for alcohol abuse VA compensation shall not be paid if the claimed disability was the result of the person's abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R.§§ 3.1(n), 3.301(c). Compensation is precluded for (1) primary alcohol abuse disabilities, and (2) secondary disabilities that result from primary alcohol abuse. The United States Court of Appeals for the Federal Circuit defined "primary" as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Therefore, entitlement to service connection for the Veteran's alcohol abuse which allegedly began during active duty service cannot be established as a matter of law. Accordingly, service connection for alcohol abuse may not be granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.