Citation Nr: 21070432 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-53 160 DATE: November 24, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for loss of taste, to include as secondary to service-connected right ear tympanoplasty, is granted. REMANDED Entitlement to service connection for a sleep disorder, also claimed as insomnia, to include as secondary to his service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to service. 2. The Veteran's decrease of sense of taste is related to his service-connected tympanoplasty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for loss of taste have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 2002 to September 2006. He is the recipient of several medals, including a Navy and Marine Corps Achievement Medal, Iraq Campaign Medal, and a Global War on Terrorism Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a March 2021 virtual Board hearing. A copy of the transcript has been associated with the file. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. 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 (2002). Importantly, if the Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. During his August 2014 VA examination provided in conjunction with his tinnitus claim, the Veteran reported recurrent tinnitus. He reported that during a deployment to Iraq he experienced acoustic trauma from mortar rounds that resulted in ringing in his ears. The examiner opined that the Veteran's tinnitus was less likely than not related to service. For rationale, the examiner noted there was no mention of tinnitus in any treatment records and the Veteran marked "no" on a post-deployment questionnaire regarding experiencing ringing in the ears. In November 2018, the Veteran's private medical provider provided a positive nexus opinion regarding his tinnitus. The physician opined that the Veteran's right ear tinnitus is more likely than not due to the tympanoplasty that he underwent during service. The examiner noted he was not able to review the Veteran's military medical records in making this determination. In December 2018, the Veteran's direct supervisor from June 2005 until his release from active duty submitted a letter stating that the Veteran was subjected to indirect mortar and rocket fire during his time in Iraq. During the March 2021 Board hearing, the Veteran testified that he experienced ringing in his ears after numerous mortar rounds hit within close proximity to his position and has experienced ringing ever since then. See Hearing Testimony, Page 8. The Board notes the negative nexus opinion provided by the August 2014 VA examiner. However, this opinion does not adequately consider the Veteran's lay reports of tinnitus as a result of service. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2014); 38 C.F.R. § 3.303(a); Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds the Veteran's report of tinnitus occurring during and since service to be sufficiently credible to support a diagnosis, in-service incurrence, and nexus to support the service connection claim. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for loss of taste, to include as secondary to service-connected tympanoplasty, is granted. The Veteran contends that his loss of taste is the result of his service-connected tympanoplasty. Therefore, secondary service connection will be addressed. As to the first and second element to secondary service connection, the Veteran has loss of sense of taste and is service connected for tympanoplasty. Therefore, the first two elements of secondary service connection, a current disability, and a service-connected disability, are met. As to nexus, during an August 2014 VA Cranial Nerve Conditions examination, the examiner opined that the Veteran's right side of the tongue loss of taste was at least as likely as not caused by his right tympanoplasty in service. A 2006 facial nerve injury status post right tympanoplasty septoplasty was noted. The Veteran was reported to suffer from loss of sense of taste for the better half of his tongue on the right side. No issues with swallowing, facial expression, or tongue movements were noted. Additionally, in an October 2018 opinion, the Veteran's private physician, Dr. D.R., provided a positive nexus opinion linking the Veteran's loss of taste to his service-connected tympanoplasty that severed his chorda tympani nerve. Therefore, the medical evidence supports the claim for secondary service connection, as the Veteran's loss of sense of taste is the direct result of his service-connected tympanoplasty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for sleep disturbances, to include as secondary to his service-connected PTSD, is remanded. The Veteran seeks service connection for insomnia. Specifically, he contends that his insomnia began during service after an incident in Ramadi and has continued to the present. See Veteran Correspondence, February 2020; Hearing Transcript, Page 14. During the March 2021 Board hearing, the Veteran asserted a new theory of service connection. He contended his sleep disturbances were secondary to his service-connected PTSD. The Veteran has a current diagnosis of insomnia. During a December 2015 VA PTSD examination, the examiner noted that the Veteran met the DSM-5 diagnostic criteria for an insomnia disorder. See PTSD Disability Benefits Questionnaire, December 2015. The Veteran reported he has not had a refreshing night's sleep for the past 8 years. A review of the Veteran's history indicated a 2009 mental health consultation noting complaints of nightmares and insomnia. An April 2018 medical treatment note reported the Veteran was seen for insomnia. He reported that prior to service, he did not suffer from insomnia or anxiety; however, his insomnia began after an attack at Al-Asad Airbase, with close mortar rounds exploding near his location. A November 2019 medical treatment record noted the Veteran has had insomnia since his deployment to Iraq. He reported waking up at least one night per week with his heart racing after having a stressful dream. Usually, he does not remember the dreams, but he has been remembering more of them. An April 2018 diagnosis of initial insomnia was noted. During a March 2020 VA PTSD examination, the examiner found no diagnosis of a sleep disorder, because his symptoms were subsumed under the diagnosis of PTSD. An April 2020 psychotherapy record noted the Veteran suffered from difficulty sleeping and recurrent nightmares. The record reflects that the Veteran has not been afforded a VA examination for his claimed condition, addressing both direct and secondary theories of entitlement. Under McClendon v. Nicholson, a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establish certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159. The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with established event, is a low threshold. McClendon, 20 Vet. App. at 83. Therefore, the Board finds that remand is necessary so that the Veteran can be afforded a VA examination regarding the nature and etiology of any current sleep disturbances. The record reflects that he reported sleep disturbances during the period on appeal. Additionally, he indicated that his symptoms are from an in-service incurrence and have been persistent since his separation from active duty service. Thus, the minimal criteria set out in McClendon have been met. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and etiology of his sleep disturbances. The claims file must be made available to and be reviewed by the examiner. The examiner should provide an opinion on: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder occurred in or is otherwise etiologically related to the Veteran's military service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder is caused by his service-connected PTSD. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep disorder was aggravated beyond the normal progress of the disorder by his service-connected PTSD. The examiner is specifically asked to opine as to whether the Veteran's symptoms of sleep disturbances are of the kind contemplated by the rating criteria for PTSD. In providing the requested opinions, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner should specifically discuss the evidence outlined above describing complaints of sleep disturbances both during and after his active duty service. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. (Continued on the next page) The examiner must provide a comprehensive rationale for all opinions expressed. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.