Citation Nr: 21075124 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-31 789 DATE: December 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran is competent to report that he has experienced ringing in his ears since service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in-service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1985 to April 1985. In September 2017, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a September 2021 letter, the Veteran was notified that the VLJ who conducted the Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond but no response was received, so the appeal is now properly before the Board. In January 2019, and in pertinent part, the Board remanded the Veteran's claim for evidentiary development. It has since been returned to the Board for further consideration. 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, 1131; 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). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including tinnitus, may be presumed to have been incurred in-service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in-service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in-service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 1. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. Essentially, he contends that his tinnitus is due to acoustic trauma experienced in-service. For the reasons stated below, the Board finds that service connection for tinnitus is warranted. Initially, the Board acknowledges that the Veteran's service treatment records are silent as to any complaints of or treatment for tinnitus or other hearing problems. There is also a notation that he was issued two fitted earplugs during service. The Veteran received a VA audiological examination in January 2013. The Veteran reported recurrent tinnitus, but did not recall the exact onset. The examiner determined that the tinnitus was less likely than not attributable to service. The examiner provided the following rationale: I base my opinion on the fact that veteran reports onset a "few" years ago and he was separated from the US Army in 1986. Additionally, there was no complain of tinnitus in the c-file or SMRs. Additionally, veteran still has normal hearing bilaterally and therefore, no documented hearing loss to link the tinnitus to. In September 2017, the Veteran testified that he was exposed to acoustic trauma such as rifle fire during basic training and that he noticed symptoms of tinnitus shortly after his discharge from service. Pursuant to the Board's January 2019 remand, the Veteran was afforded another VA audiological examination in August 2020. The Veteran reported that ringing in his ears began when firing weapons in the military. The examiner determined that the Veteran's tinnitus was less likely than not attributable to service. The examiner provided the following remarks: Claimant served three months of active duty military service during peacetime. He presented with normal hearing over 20 years after military service. No record of tinnitus or hearing loss in-service found within the provided medical records. On Compensation and Pension Exam Report dated 09 January 2013 by Chillicothe VAMC he was unsure of when the tinnitus began. Standard Form 600 dated 29 January 1985 for record of medical care shows he was issued ear plugs at the start of military service. Therefore, it is less likely than not the tinnitus is a result of military noise exposure. Here, the evidence of record documents that the Veteran has current tinnitus inasmuch as he has credibly stated that he has ringing in his ears. Additionally, the VA examiners have confirmed a diagnosis of recurrent tinnitus. The Board will also concede some in-service noise exposure incurred during weapons training. The Board notes the negative etiological opinions provided by the VA examiners of record. The Board further notes that, in this case, the Veteran is competent to state that he experiences a ringing sound in his ears. He has alternately reported that his tinnitus symptoms began shortly after his discharge from the military and that he did not remember when they began. He described his symptoms as intermittent ringing in both ears. While a lay person, he is capable of opining on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Tinnitus, or ringing in the ears, may be observed and described by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although there are clinical opinions against the claim, the Board accepts the Veteran's statements as competent and relatively credible as to his having been exposed to noise in the military and having ringing in his ears that continued afterwards. Therefore, after a full review of the record, the Board finds that the evidence is in relative equipoise, such that a finding of tinnitus of service onset may be conceded. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for tinnitus. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to retrieve any outstanding treatment records, Social Security Administration records, and to obtain addendum opinions. The Veteran was afforded a VA examination in 1985; however, the examiner concluded that his bilateral knee disorder and his psychiatric disorders pre-existed his entry into service. It was noted there were signs of old Osgood-Schlatter's Disease of the knees and the psychiatric findings in-service had been of a personality disorder. Further hospitalization was recommended in view of the Veteran's reported suicidal thoughts. In correspondence received in 1986, he reported that he was hospitalized at the Jackson VA facility for an emotional disorder. Pursuant to the Board's January 2019 remand, the Agency of Original Jurisdiction (AOJ) contacted the Jackson VA Medical Center for records from 1985 to 1986. Unfortunately, a negative response was provided and the Veteran was advised that no records could be located in April 2020. To date, the Veteran has not submitted any additional records. During remand development, the Veteran received a VA knee examination in October 2019, where he was diagnosed with bilateral patellofemoral dysfunction with chondromalacia (1985), right knee strain with patellar tendonitis status post injury (2002), left knee contusion with effusion status post fall (2007), and bilateral Osgood-Schlatter's Disease (1985). The Veteran reported that he injured his knees during service and denied any injury prior to service. Ultimately, the examiner determined that the Veteran's bilateral knee disorder was less likely than not related to service and less likely than not aggravated beyond its natural progression by service. The examiner provided the following rationale: Veteran's STRs do reveal complaints of bilateral knee pain and he was diagnosed with patellofemoral dysfunction with chondromalacia of bilateral knees but his medical record does not reveal chronic, progressive complaints of bilateral knee condition. His medical record notes complaints of right knee in 2003 and left knee after fall in 2007. His medical record also reveals that he was a construction worker- this can be a hard career on knees and joints. Veteran was not diagnosed with left knee contusion and effusion until 2007 after a fall on left knee - no evidence of diagnosis during service or prior to service. Veteran's right knee strain was not diagnosed until 2003 - no evidence of diagnosis during service or prior to service. The Veteran's current available medical record does not reveal chronic, progressive complaints of bilateral knee condition (patellofemoral dysfunction, [Osgood Schlatter's], right knee strain, left knee contusion and effusion). Currently there is no evidence of chronic, progressive complaints of bilateral knee condition. The Veteran also underwent a VA psychiatric examination in October 2019. Regrettably, the examiner could not provide a diagnosis for a mental disorder. The examiner then provided the following comments: Critical records have not been submitted by [the Veteran]. He has received past and current treatment for mental health conditions and has not submitted any of those records. He also reports he is on social security for mental health concerns but has not submitted any of those records or examinations. When directly asked what mental health condition social security is providing disability for, he said he did not know and that he did not get an actual check but just "got disability for mental health concerns". That is entirely unclear. He reports vague symptoms that could point to any one of a number of conditions - a depressive disorder, an anxiety, a mood disorder, adjustment disorder, insomnia, mental health conditions related to pain or medical conditions, etc. The symptoms have little focus and the description of the nature of the symptoms, severity, and frequency is vague and it is concerning that the records from previous mental health assessment and treatment have not been presented. He notes serious psychosocial issues in the 90's (homelessness, suicide attempt) which suggest something rather serious was occurring at that time but since there has been much stabilization (no homelessness, stable marriage, no reports of substance issues, no suicide attempts or ideation). When asked about his stabilization, he attributes this to his current wife. His psychiatric reports in the military are brief and the reports do not lend understanding to what he was experiencing. Ultimately, they diagnosed a personality disorder for which I do not see current evidence of in today's assessment. That being said, it is not uncommon for a limited encounter to turn up little evidence of a personality disorder which is why the records from providers with an extended relationship is important. There is no unequivocal evidence of anything as is asked about in the rest of the inquiry and therefore many of the questions in the request for examination simply cannot be answered with any more than speculation. History provides several important points of conflict. His self report suggests he went into the military at 17 under less than ideal circumstances which suggests less family stability than he has stated in the self-report. Records are silent on his functioning pre- military. There is only self report where he states he did fine and his childhood was average. Somehow he ends up in a psychiatric facility in the military but for what, is unclear from the records. He says it is because he was physically injured and the military staff yelled at him and called him a liar about his injury and thus he suffered a "nervous breakdown". We do see the psych reports but they are hard to read and state that he is malingering and he is ultimately discharged for severe schizoid personality disorder. He was only in the military 87 days and his report from April 12, 1985 states he had an "emotional collapse". Same report says he is suffering from a severe personality disorder and that testing indicated that he is "emotionally and intellectually unable to cope with military service". However, the details are not present in the reports so the undersigned is entirely unclear of what prompted an accusation of malingering and what symptoms were present to suggest personality disorder. Current reports and treatment notes, of which there should be several as he reports getting medication for psychological problems, were not submitted. The undersigned does not feel she can render a current diagnosis based on the information she has and without a current diagnosis, she cannot conclude where it was incurred or aggravated. Prior to further evaluation, the Veteran should submit his full records of mental health care including those from the prescriber who are providing the psychotropic medications. The Board finds these VA examinations and corresponding opinions to be inadequate for rating purposes. Notably, it is unclear to the Board whether the Veteran's bilateral knee disorder pre-existed service and there is conflicting information in the reports of record. The examiner also provided a limited rationale despite the evidence of knee problems during service. Additionally, the VA psychiatric examiner resorted to speculation and could not provide an exact diagnosis. It was also emphasized that additional treatment reports need to be obtained in order to provide an accurate opinion. Considering the above, there may be outstanding or pertinent treatment reports available for review. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. Any outstanding SSA records should also be obtained. Finally, the Board determines that addendum opinions would help resolve the claim. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, including any SSA records, and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's electronic claims file. The Veteran is advised that the duty to assist is not a one-way street, and failure to cooperate or submit medical treatment records may result in a denial of the claim. 2. Thereafter, and regardless of whether additional treatment records are located, obtain an addendum opinion from a VA orthopedic specialist to determine the nature and etiology of the Veteran's claimed bilateral knee disorder. The electronic claims files and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide all relevant diagnoses of disorders of the knees. It is requested that specific diagnoses be set out if found. Then, the examiner must answer the following: (a) Is there unequivocal evidence that a disorder of the knees existed prior to entry into service? (b) If so, is there unequivocal evidence that any pre-existing disorder did not undergo an increase in severity (aggravation)? (c) If there is not unequivocal evidence that the disorder pre-existed service and did not undergo an increase in severity (aggravation), is it as least as likely as not (50 percent probability or higher) that the disorder existed during service or is related to any in-service event or occurrence? In offering any opinion, the examiner must consider the full record. The examiner should also reconcile any prior report, if necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 3. Also, obtain an addendum opinion from a VA psychiatrist to determine the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The electronic claims files and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide all relevant psychiatric diagnoses. Specific diagnoses are requested, to include whether there is acquired psychiatric pathology, and/or a personality disorder. Then, the examiner must answer the following: (a) Is there unequivocal evidence that an acquired psychiatric disorder existed prior to entry into service? (b) If so, is there unequivocal evidence that any pre-existing disorder did not undergo an increase in severity (aggravation)? (c) If there is not unequivocal evidence that the disorder pre-existed service and did not undergo an increase in severity (aggravation), is it as least as likely as not (50 percent probability or higher) that the disorder existed during service or is related to any in-service event or occurrence? (d) Does the evidence support the in-service finding of a severe personality disorder? Are there in-service signs that may represent the early onset of any acquired psychiatric disorder, if one is found? In offering any opinion, the examiner must consider the full record. The examiner should also reconcile any prior report, if necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.