Citation Nr: 21069742 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-51 561 DATE: November 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. Entitlement to service connection for dry eyes is remanded. Entitlement to service connection for a skin disability, claimed as eczema, is remanded. Entitlement to service connection for hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus started in service and has continued since then. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to July 1981. This matter comes before the Board of Veteran's Appeals (Board) from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the record. 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. 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; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (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). 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). The Veteran's medical records have been associated with the claims file. These show the Veteran has a diagnosis of tinnitus and that he reported having experienced tinnitus since his service. See generally VA medical records, to include records for April 2014. In April 2015, the Veteran was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ). In this examination the Veteran reported tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not a symptom associated with the Veteran's hearing loss. In favor of this opinion the examiner noted that the Veteran's description of his tinnitus was usual and not indicative of tinnitus associated with hearing loss. He also opined that the Veteran's tinnitus was less likely than not related to the Veteran's military noise exposure because the Veteran's post-discharge audiogram did not show hearing loss and because the onset was unknown. See Hearing Loss DBQ of April 2015. At the hearing, the Veteran provided testimony in favor of his claim including stating that his tinnitus has been present since his military service. See hearing transcript. Here, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted on a presumptive basis. The evidence of record shows that the Veteran has a current diagnosis of tinnitus, and as such, his claim surpasses the first prong of the Shedden service connection test- the current disability requirement. Additionally, the RO conceded the Veteran's hazardous noise exposure during service. Thus, his claim also surpasses the second prong of the Shedden service connection test, the in-service incurrence. However, the medical evidence of record does not provide a nexus. The Board clarifies that the opinion on the likely etiology of the Veteran's tinnitus provided by the examiner in the Hearing Loss DBQ of April 2015 is inadequate for adjudication purposes as the examiner did not provide a complete rationale for the opinions expressed nor consider the Veteran's medical records and the statements regarding the onset of his condition noted therein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). As such, the Hearing DBQ of April 2015 is afforded little to no probative value. There is no other medical opinion of record addressing the likely etiology of the Veteran's tinnitus. Thus, the Veteran's claim does not surpass the third prong of the Shedden service connection test, the nexus requirement. Notwithstanding, the Board notes that alternatively to the nexus requirement of the Shedden service connection test, certain chronic diseases, including tinnitus, are considered organic diseases of the nervous system and may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). Here, the Veteran's service treatment records (STRs) do not show any diagnosis, symptoms, or complaints of tinnitus during service. See generally STRs. However, the Veteran is competent to report the onset and continuity of his tinnitus, as tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the Board finds the Veteran's lay statements regarding the onset and continuity of his tinnitus, competent, credible, and affords them high probative value. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, in light of the Veteran's competent and credible statements regarding his tinnitus onset and continuity, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted on a presumptive basis, as the chronic condition had its onset in service and has continued ever since. 38 C.F.R. §§ 3.307, 3.309 (a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. The Veteran seeks service connection for PTSD. In favor of his claim the Veteran asserts that he has a diagnosis of PTSD and has presented lay statements describing his claimed in-service stressors. The Veteran's medical records show a diagnosis of PTSD. See medical records for October 2014. Additionally, a letter provided by a physician notes a diagnosis of depression, subsequent to PTSD. See letter and statement in support of claim dated February 2015 and associated with the claims file in March 2015. Accordingly, as the medical records suggest the Veteran may have more than one diagnosis, the Board has recharacterized the Veteran's claim as it appears on the title page of this decision. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). In May 2014, the Veteran's representative noted that the Veteran assisted in the recovery efforts following an earthquake in "Al Asnam, Algeria" in October 1980. The statement noted that the Veteran was assigned to the USS Guadalcanal at the time and that he saw dead and injured bodies and horrific scenes of devastation. See statement of May 2014. In August 2014, the Veteran presented another statement noting that ships of the Amphibious Forces, Sixth Fleet, including the USS Guadalcanal, provided assistance after the massive earthquake of October 1980 in "Al Asnam." The Veteran asserted that his military records should show that the 3rd Battalion, 2nd Marines, served aboard the USS Guadalcanal for 6 months and that he served with "Mike Co. 3/2 from August 1977 thru December 1980." See statement of August 2014. In a VA Form 21-0781, Statement in Support of Claim for service connection for PTSD, the Veteran noted that in July 1977 he was at Parris Island, SC for bootcamp and that two fellow recruits committed suicide. This statement also mentions a live-fire accident in 1980 and a court martial. See VA Form 21-0781 of August 2014. In May 2015, the Veteran provided more details regarding his PTSD stressor regarding the earthquake in Algeria, that he saw bodies and hundreds injured and that his duty during the incident was to provide command leadership in search and rescue of injured victims. See Statement of May 2015. In May 2015, the RO determined that there was insufficient information to corroborate the stressful events described by the Veteran. In pertinent part, the determination noted that the Veteran's personnel file did not contain reference to his participation in the Algerian Earthquake effort and that while the Veteran claimed having participated while aboard the USS Guadalcanal, his records showed he was on the USS La Moure County during the time frame of October 1980. See VA Form 21-0961, Rating Decision/Administrative Decision/Formal Finding, of May 2015. The Board finds that additional efforts to corroborate the Veteran's stressors are necessary, to include requesting information from other appropriate sources. First, the Board observes that the claims file shows no attempt to verify the claimed stressor of fellow recruits committing suicide during bootcamp in 1977. Thus, upon remand the RO must attempt to verify this stressor. Additionally, the RO limited their search to the Veteran's military records and did not attempt to obtain additional information from other sources to verify whether the Veteran's unit was assigned to the USS Guadalcanal for 6 months. Further, the RO did not attempt to verify the stressors described in the VA Form 21-0781 of August 2014. Notwithstanding the above, the Board notes that while entitlement to service connection for PTSD requires verification of a claimed stressor, entitlement to service connection for a psychiatric disorder, other than PTSD, does not require verification of a claimed stressor. However, service connection for a psychiatric disorder, other than PTSD, does still require a nexus between a diagnosed psychiatric disorder and service. Therefore, regardless of whether the Veteran's claimed stressors can be verified, he must still be provided a VA mental health examination and medical opinion. If the Veteran's stressors cannot be verified, the medical opinion must address whether any psychiatric disorders, other than PTSD, are at least as likely as not due to his active-duty service. If the Veteran's PTSD stressors are verified by the RO, the Veteran must be afforded a medical opinion regarding the likely etiology of his PTSD. 2. Entitlement to service connection for dry eyes is remanded. The Veteran seeks service connection for dry eyes, also claimed as a retinal disease. The Veteran believes his condition to be associated with exposure to contaminated water at Camp Lejeune. The Veteran's military records reflect he was stationed at Camp Lejeune and the RO has conceded his exposure. See rating decision on appeal and SOC. His medical records also show treatment for dry eyes. See generally VA medical records. The Veteran has not been afforded a VA examination or a medical opinion addressing the likely etiology of his condition. It is noted that eye conditions are not included in the diseases subject to presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune. See 38 C.F.R. § 3.307 (a)(7). However, under 38 C.F.R. § 3.309 (f), a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to contaminated water. See Combee v. Brown, 34 F.3d 1039, 1043 (1994). Here, the evidence shows that the Veteran has been treated for eye dryness during the appellate period, that he is presumed to have been exposed to water contaminants at Camp Lejeune, and there is no sufficient evidence to adjudicate the matter. Thus, the Board finds the Veteran must be afforded an examination and a medical opinion must be obtained addressing the likely etiology of the Veteran's eye condition, to include whether the condition may be related to the contaminants he was exposed to while stationed at Camp Lejeune. In providing the requested opinion, the examiner must consider that 38 C.F.R. § 3.307 (a)(7) specifically explains that "contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems at Camp Lejeune. 3. Entitlement to service connection for a skin disability, claimed as eczema, is remanded. The Veteran seeks service connection for a skin disability. In favor of his claim, he asserts that the condition began in service. He also believes his condition may be due to his exposure to contaminated water at Camp Lejeune. See hearing transcript. The Veteran's service treatment records show that he complained of face irritation in January 1979. His report of medical examination for separation, dated May 1981, shows notations of marks and scars, with skin pigmentation. See STRs. His medical records show a diagnosis of eczema. See VA medical records. Thus, as the Veteran's medical records show a current condition, and his STRs show complaints of skin irritation, the Board finds the matter must be remanded for an examination and medical opinion addressing the likely etiology of the condition. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also notes that while eczema is not included in the diseases subject to presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune, the condition may still be entitled to service connection on a direct basis with medical evidence showing a nexus between the disease and the exposure to the contaminated water. See Combee v. Brown, 34 F.3d 1039, 1043 (1994). Accordingly, the examiner is asked to opine on the likely etiology of the Veteran's skin disability, while considering that "contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems at Camp Lejeune. 38 C.F.R. § 3.307 (a)(7). 4. Entitlement to service connection for hearing loss is remanded. The Veteran seeks service connection for hearing loss. In May 2015, the Veteran was administered a Hearing Loss DBQ. The examiner determined that the results were not valid. Additionally, the examiner opined that the Veteran's hearing loss is not at least as likely as not related to service because an audiogram of 1982 showed no hearing loss. As the examiner based the conclusory opinion entirely on the lack of medical evidence showing hearing loss in service, this medical opinion is inadequate for adjudication purposes. Hensley v. Brown, 5 Vet. App. 15, 159 (1993). At the hearing, the Veteran asserted that his hearing loss has worsened since the VA examination. See hearing transcript. Accordingly, the Board finds the matter must be remanded for a new examination and for a medical opinion addressing the likely etiology of the Veteran's disability. The matters are REMANDED for the following actions: 1. Update existing VA medical records. 2. Attempt to corroborate the Veteran's in-service stressors. If more details are needed for verification, contact the Veteran to request the information. Attempt to verify/corroborate the Veteran's stressors, to include the following: a. Attempt to verify the Veteran's unit assignment for the period of October 1980. The Veteran asserts that he was assigned to the 3rd Battalion, 2nd Marines and served aboard the USS Guadalcanal for 6 months; period during which he assisted in the relief efforts after the October 1980 earthquake in Algeria. Attempt to verify whether the Veteran participated of the relief efforts. See statements of May 2014 and August 2014. b. two fellow recruits committed suicide in July 1977, while the Veteran was in bootcamp at Parris Island, SC. See VA Form 21-0781 of August 2014. c. a live-fire accident in 1980. See VA Form 21-0781 of August 2014. d. a court martial. See VA Form 21-0781 of August 2014. e. incarceration aboard USS Guadalcanal. See VA Form 21-0781 of August 2014. A request to the RMDA and/or any other appropriate repository should be made, if necessary. Obtain unit histories, ship's logs, evaluation reports, or any other available documentation to verify the Veteran's above-mentioned reported stressors. If more details are needed, contact the Veteran to request the information. All attempts to verify the stressors must be documented in the claims file. Any negative responses must be documented. 3. Regardless whether the Veteran's stressors can be corroborated, schedule him for a VA examination for his acquired psychiatric disorder(s) and obtain a medical opinion. a. The examiner is asked to specify the Veteran's diagnoses, to include whether the Veteran has a psychiatric disorder other than PTSD. b. If the Veteran's stressors are verified, provide a medical opinion regarding the likely etiology of his PTSD, considering the verified or corroborated stressors. c. If the Veteran's stressors cannot be corroborated, provide a medical opinion regarding the likely etiology of any diagnosed psychiatric disorder, other than PTSD. 4. Schedule the Veteran for a VA examination regarding his dry eyes and obtain a medical opinion addressing the likely etiology of the condition. a. The examiner is asked to opine whether the Veteran's dry eyes are at least as likely as not related to his service, to include his conceded exposure to contaminated water at Camp Lejeune. It is understood that "dry eyes" are not on the list of diseases considered presumptively caused by exposure to contaminated water at Camp Lejeune. This opinion seeks a discussion as to direct causation, or in other words whether there was a relationship between the Veteran's service, to include the conceded exposure to contaminated water at Camp Lejeune, and the Veteran's development of dry eyes. Consider the Veteran's lay statements. In providing the requested opinion, the examiner must consider that 38 C.F.R. § 3.307 (a)(7) specifically explains that "contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems at Camp Lejeune. 5. Schedule the Veteran for a VA examination regarding his skin condition and obtain a medical opinion addressing the likely etiology of the condition. a. The examiner is asked to opine whether the Veteran's skin condition is at least as likely as not related to his service, to include his conceded exposure to contaminated water at Camp Lejeune. i. In rendering the opinion, the examiner is asked to also consider the Veteran's STRs showing complaints of face irritation in January 1979 and his separation examination report noting marks and scars, with skin pigmentation. See STRs. It is understood that the Veteran's skin condition is not on the list of diseases considered presumptively caused by exposure to contaminated water at Camp Lejeune. This opinion seeks a discussion as to direct causation, or in other words whether there was a relationship between the Veteran's service, to include his conceded exposure to contaminated water at Camp Lejeune and the Veteran's development of the skin condition. Consider the Veteran's lay statements. In providing the requested opinion, the examiner must consider that 38 C.F.R. § 3.307 (a)(7) specifically explains that "contaminants in the water supply" means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems at Camp Lejeune. 6. Schedule the Veteran for a new examination regarding his hearing loss claim and obtain a medical opinion addressing the likely etiology of the condition. a. The examiner is asked to opine whether the Veteran's hearing loss is at least as likely as not related to his service to include his conceded hazardous noise exposure. i. In rendering this opinion the examiner is asked to consider whether the Veteran's service treatment records reveal any threshold shifts, and the Veteran's lay statements regarding the onset of his condition. The Board respectfully reminds the examiner that the Veteran's noise exposure during service has been conceded, and legal authority providing that normal audiometric results in separation examination alone are NOT adequate basis for negative audiological opinion. In rendering the requested opinion, the examiner must discuss the possibility of delayed-onset hearing loss and consider the Veteran's statements regarding the onset of symptoms. (Continued on the next page) A complete rationale for all opinions expressed is requested. If any examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 7. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.