Citation Nr: 21069694 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 20-30 167 DATE: November 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an unspecified depressive disorder is granted. Entitlement to service connection for obesity is denied. Entitlement to service connection for an eye disorder, to include ocular hypertension, is denied. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a foot disorder, to include bilateral plantar fasciitis, is remanded. FINDINGS OF FACT 1. The Veteran currently has tinnitus. 2. The Veteran's tinnitus is related to service. 3. The Veteran's current unspecified depressive disorder is of service origin. 4. Obesity is not a disability subject to service connection for VA purposes. 5. The Veteran has refractive error and astigmatism, which are not diseases or injuries within the meaning of the law providing compensation. 6. An eye disorder, to include ocular hypertension, has not been demonstrated. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an unspecified depressive disorder have been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for entitlement to service connection for obesity are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). 4. The criteria for entitlement to service connection for an eye disorder, to include ocular hypertension, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 4.9 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 2003 to May 2006. He had no foreign service during this time period. At the outset, the Board notes that a portion of the Veteran's service treatment records have been lost through no fault of the Veteran. In such a case, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Tinnitus Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, tinnitus is considered a chronic disease for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for tinnitus. The Veteran maintains that his current tinnitus had its onset in service. He states that he was constantly exposed to jet engine noise while performing his duties in service as a Naval Aircrewman. The Board notes that noise exposure has been conceded. The Veteran was afforded a VA examination in September 2015. A diagnosis of tinnitus was rendered. At the time of the examination, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or the result of his military service. She noted that there were no complaints of tinnitus in service. She also stated that the Veteran reported that his tinnitus began about five years ago, which was four years post-service, and that there was no literature which would support later onset tinnitus to previous exposure to hazardous noise. In support of his claim, the Veteran submitted a May 2020 statement from M. G., who served with the Veteran, who noted the Veteran reporting having defective ear plugs and tinnitus while in service. The Board finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. With regard to the September 2015 VA examiner's opinion that the Veteran's tinnitus was less likely than not related to his period of service, this was based, in part, upon there being no reports of tinnitus in service. As noted above, a significant portion of the Veteran's service treatment records are missing through no fault of the Veteran. The Veteran has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Veteran's reports of tinnitus are bolstered by his fellow serviceman reporting that the Veteran experienced tinnitus in service. Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced recurrent tinnitus symptomatology in service and since service discharge. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Unspecified Depressive Disorder As noted above, a significant portion of the Veteran's service treatment records are not available for review through no fault of the Veteran. Moreover, the Veteran has not been afforded a VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder and its relationship, if any, to the Veteran's period of service despite the missing treatment records. In conjunction with his claim, the Veteran submitted an August 2021 in-depth psychiatric report from J. P., Psy.D., who indicated that she had reviewed the Veteran's entire file. She noted that based on records reviewed, it was evident that the Veteran met the criteria for unspecified depressive disorder. She stated that according to the DSM-5, this was given when symptoms characteristic of a depressive disorder that caused clinically significant impairment or distress in social, occupational, or other important areas of functioning were present; however, they did not meet the full criteria for any other specific depressive disorder. She observed that the Veteran received counseling on March 14, 2005 for his low performance and again on May 10, 2005, because he failed his second room inspection. She observed that an Evaluation Report and Counseling Record from July 15, 2005 noted that the Veteran "has the motivation and unlimited potential to be a future front-runner and solid Acoustic Operator," and he was recommended for advancement; however, on July 18, 2005, the Veteran received counseling regarding his negative attitude. She noted that additional records from September 14, 2005, January 24, 2006, and February 2, 2006, documented that the Veteran received punishment for unauthorized absences. She indicated that an Evaluation Report and Counseling Record from February 17, 2006, documented that a special evaluation was submitted to withdraw the Veteran's recommendation for advancement. On February 24, 2006, the Veteran received counseling for low performance and his noted difficulties included professional performance, accountability, and OJT progress. She also noted that on March 4, 2006, the Veteran received punishment for unauthorized absence and on March 6, 2006, the Veteran received administrative counseling and warning for violation UCMJ Article 86. On May 6, 2006, the Veteran received another punishment for violation of lawful order, resulting in restriction for 30 days and reduced inferior pay grade. She observed that according to the Veteran's Administrative Separation from May 12, 2006, he received 7 written counselings between March 2005 and February 2006 for problems involving missed scheduled events. Dr. P. then documented the Veteran's treatment history and noted several statements the Veteran had made during the course of the claim, including a March 2021 statement, wherein he specifically stated that he began consuming alcohol in order to cope with the stressful events he was exposed to during service. He explicitly stated that he utilized alcohol to self-medicate, which eventually turned into dependency and led to additional substances. She noted that it was common for individuals suffering from significant psychological distress to utilize alcohol as a means of self-medication to deal with their symptoms. She stated that clearly this was the case for the Veteran. Dr. P. opined that given the consistent records and credible statements showing a documented onset of mental health symptoms during the Veteran's service as the result of the traumatic events he was exposed to, given the statements and records indicating the severity and chronicity of his psychological symptoms until the present, and given the lack of any indication that the Veteran had had a mental health disorder prior to joining the military, the evidence in the record indicated that it was at least as likely as not the Veteran's unspecified depressive disorder was a direct result of his service. Given the missing records, the notations of the Veteran's deteriorating performance in service, the post-service medical treatment, the statements provided by the Veteran, and the in-depth opinion provided by Dr. P., the Board finds that the evidence is at least in equipoise that the Veteran's current unspecified depressive disorder had its onset in service. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for an unspecified depressive disorder. Obesity VA's Office of General Counsel has held that while obesity may be an intermediate step between a service connected disability and a current disability, it is not by itself considered a disease or injury under VA's laws and regulations and may not be service connected on a direct or secondary basis. VAOPGCPREC 1-2017. The Board is bound by the General Counsel's opinion. In Marcelino v. Shulkin, 29 Vet. App. 155 (2018), the Court affirmed VA's authority to preclude consideration of obesity as a disability for adjudication purposes. Consequently, the Board concludes the Veteran's claim for service connection for obesity must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Eye Disorder, to Include Ocular Hypertension The Veteran maintains that he currently has an eye disorder, to include ocular hypertension, which had its onset in service. A review of the available service records reveals that the Veteran was placed on an aeromedical waiver for ocular hypertension. Available treatment records contain diagnoses of refractive error and astigmatism. Post-service treatment records, while noting a history of ocular hypertension, do not contain an actual diagnosis of ocular hypertension on eye examination. In conjunction with his claim, the Veteran was afforded a VA eye examination in August 2020. At that time, there were no diagnoses rendered. The examiner noted that the Veteran had been advised of possible glaucoma problems mostly on the basis of strong family history with glaucoma present in father and paternal grandfather. It was indicated that the diagnostic values had always shown pressures at 20-22, slightly enlarged cupping with normal retinal thickness by OCT and slightly thicker corneas in the 575 range which would adjust the IOP 1 unit lower. These readings were never actually in the range for either ocular hypertension or glaucoma. Corrected visual acuity was 20/20 right and left. In an accompanying medical opinion, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. He stated that the Veteran did not have typical ocular hypertension. His pressure had always been at the top of normal but had stayed constant in that range. The claimed condition was less likely than not incurred in or caused by any claimed inservice injury. Here, the Veteran is currently diagnosed with refractive error and astigmatism only. Refractive errors of the eyes are not "diseases or injuries" for disability compensation purposes under VA law. See 38 C.F.R. §§ 3.303(c), 4.9; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Refractive error of the eyes includes diagnoses of myopia and astigmatism. See, e.g., Dorland's Illustrated Medical Dictionary 168, 1225 (32nd ed. 2012). Absent superimposed disease or injury, service connection may not be allowed for refractive errors of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is not a disease or injury for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303(c), 4.9 (refractive error of the eye are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90 (July 18, 1990). While the Board does note that the Veteran was granted a waiver for ocular hypertension in service and that the Veteran has been noted to have a history of ocular hypertension, the most recent VA examination reveals that the Veteran has not been diagnosed with ocular hypertension or any other type of eye disease which would warrant service connection. The examiner, following a thorough review of the file, indicated that the Veteran did not have ocular hypertension that was related to service. The Board is placing greater emphasis on this opinion as it was rendered following a thorough review of the file and comprehensive examination of the Veteran. Given the foregoing, the preponderance of the evidence is against the claim of service connection for an eye disorder, to include ocular hypertension. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND As to the claims of service connection for bilateral plantar fasciitis, migraine headaches, and vertigo, the Veteran has not been afforded a VA examination as it relates to these issues. A heightened duty to assist is required as a significant portion of the Veteran's service treatment records are missing through no fault of the Veteran. As it relates to the claim of service connection for vertigo, the Veteran has indicated his belief that his current vertigo/dizziness is caused or aggravated by his tinnitus. As noted above, service connection is now currently in effect for tinnitus as a result of the above decision. Likewise, as it relates to the claim of service connection for migraine headaches, the Veteran has indicated that it is his belief that his current migraine headaches are related to either his now service-connected depressive disorder, having submitted several articles showing a relationship, and/or his now service-connected tinnitus. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998), 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Given the foregoing, the Veteran should be afforded VA examinations to determine the etiology of any current vertigo and migraine headaches and their relationship, if any, to his period of service and/or his service-connected tinnitus and/or depressive disorder. As it relates to the claim of service connection for bilateral plantar fasciitis, the Veteran has indicated that he has had problems with his feet since he was in Recruit Training Command. In support of his claim, the Veteran submitted an August 2019 statement from M. G. noting that the Veteran had foot pain in basic training from the boots he wore. Given the foregoing, and with a significant portion of service treatment records being missing, the Veteran should be afforded a VA examination to determine the nature and etiology of any current foot disorder, and its relationship, if any, to his period of service. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to determine the etiology of any current migraine headaches. The examiner must review the claims file in conjunction with the examination. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current migraine headaches are etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any current migraine headaches are caused by the service-connected depressive disorder or tinnitus? If not, is it at least as likely as not (50 percent probability or greater) that any current migraine headaches are aggravated by the service-connected depressive disorder or tinnitus? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. 3. Schedule the Veteran for a VA examination to determine the etiology of any current vertigo. The examiner must review the claims file in conjunction with the examination. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current vertigo is etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any current vertigo is caused by the service-connected tinnitus? If not, is it at least as likely as not (50 percent probability or greater) that any current vertigo is aggravated by the service-connected tinnitus? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. 4. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any current left or right foot disorder, to include bilateral plantar fasciitis. All indicated tests and studies should be performed and all findings must be reported in detail. The entire record must be made available for review and the examiner should note such review in his/her report. After a complete review of the claims folder, the examiner is requested to offer the following opinion: Is it as likely as not (50 percent probability or greater) that any current right or left foot disorder, to include bilateral plantar fasciitis, is related to the Veteran's period of service? In providing the above opinions, the examiner should consider and address statements from the Veteran and his fellow serviceman regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Complete detailed rationale is requested for any opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.