Citation Nr: 21075985 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-03 258A DATE: December 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for Meniere's syndrome is denied. REMANDED Entitlement to service connection for a peripheral vestibular disorder, to include vertigo is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, adjustment disorder, and anxiety is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. 2. The preponderance of the evidence of record is against finding that the Veteran has had Meniere's syndrome at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for Meniere's syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 24, 1966 to March 5, 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. While the Veteran initially filed a claim for entitlement to service connection for anxiety, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim more broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety, depression. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for 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). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began around 45-50 years ago while he was serving with the Army in Germany. The Board notes that the Veteran is wholly competent to self-diagnose and report the onset and course of simple, lay-observable conditions such as tinnitus (which is diagnosed primarily based on subjective reports), as well as the onset and frequency of tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, his own account of experiencing the initial onset of tinnitus during service is competent evidence of the history and course of his tinnitus. The Board finds no reason to doubt the veracity of those statements and finds them credible. Thus, those statements, alone, are sufficient to establish entitlement to service connection on the basis that tinnitus began in service and has persisted since. In so finding, the Board is mindful of the negative VA opinion. However, the April 2019 opinion fails to give the Veteran's lay reports due consideration. The examiner reportedly mischaracterized the Veteran's statements about the onset of his tinnitus. Additionally, the Veteran indicated in his February 2019 statement that his tinnitus began in service and continued to the present. As the examiner did not discuss the Veteran's allegations of in-service incurrence, the Board affords the opinion little probative weight. Accordingly, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's tinnitus began in service and has persisted. Resolving all remaining reasonable doubt in the Veteran's favor, the Board finds the appeal in this matter must be granted. 2. Entitlement to service connection for Meniere's syndrome At the October 2021 hearing, the Veteran reported he did not recall ever being diagnosed with Meniere's syndrome, but has instead reported dizziness since his time in service. Service connection may be granted for 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of Meniere's syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2018 VA examiner evaluated the Veteran and determined that, while he had experienced subjective symptoms of dizziness, he did not have a diagnosis of Meniere's syndrome. Additionally, VA treatment records do not contain a diagnosis of Meniere's syndrome. While the Veteran applied for service connection for Meniere's syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. REASONS FOR REMAND 1. Entitlement to service connection for a peripheral vestibular disorder, to include vertigo is remanded. The Veteran contends that his "fainting spells" and vertigo began in service and have continued since service. The Veteran reported that he still has issues with dizziness and vertigo to the present and was hospitalized for dizzy spells within the appeal period. The Veteran also reported he was hospitalized for his dizziness during service at Fort Dix. The Board notes that the Veteran had a dizziness spell prior to his active service in June 1963. A January 1966 statement provided by a medical provider indicated that the Veteran likely had an imbalanced sympathicus reaction following the dizziness spell after strenuous sport activity. The Veteran's private medical records reflect treatment for vertigo or dizziness in August 2014. VA medical records from February 2016 indicate the Veteran had experienced vertigo spells for the last 10 years. A dizziness handicap inventory revealed an abnormal score of 28/100 indicating a mild handicap in February 2016. The December 2018 and April 2019 VA examiners concluded that the Veteran did not have a current disability of a peripheral vestibular disorder, to include vertigo, at any time relevant to the appeal period. As the Veteran submitted his claim in April 2015, was treated for vertigo in February 2016, and continues to report symptoms, it appears that these conclusions were based on an inaccurate factual premise and did not adequately consider the Veteran's own lay statements. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). As the December 2018 and April 2019 VA examinations were inadequate, remand is required for an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, adjustment disorder, and anxiety is remanded. The Veteran contends that his acquired psychiatric disorder, to include depression, adjustment disorder, and anxiety, began in service and has continued to the present. Alternatively, the Veteran contends that his current acquired psychiatric disorder is secondary to pain from his service-connected lumbar disability. The Board notes that a May 1966 service treatment record indicates the Veteran was diagnosed with chronic depression with anxiety features. While the Veteran's separation examination was negative for any psychiatric symptoms, at the October 2021 hearing, the Veteran reported that his separation examination was rushed, and so he was unable to report all his symptoms. The Veteran's VA treatment notes indicate that he is undergoing treatment for adjustment disorder, depressed type, and has recently had moderate depression and mild anxiety. The Board also notes that the Veteran reported his depression was related to pain and other symptoms of his service-connected lumbar disability. See Cucuras v. Sec'y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder's decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that "[m]edical records, in general, warrant consideration as trustworthy evidence, and that "oral testimony in conflict with contemporaneous documentary evidence deserves little weight"); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Veteran was afforded a VA examination for his claimed anxiety disorder in December 2018. The examiner concluded the Veteran did not have a current disability of an anxiety disorder based on a lack of medical records. The examiner also opined any current anxiety was unrelated to anxiety experienced in service because he did not mention a specific event that caused his anxiety. This is an inadequate rationale because it is based on the inaccurate factual premise that the Veteran does not have a current acquired psychiatric condition, nor does it consider the theory of secondary service connection based on the Veteran's service-connected lumbar disability. Thus, the Board finds remand is necessary for an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his hearing loss began during service and worsened after service. Specifically, the Veteran contended at his October 2021 hearing that he began experiencing muffled sounds while in service and that condition has continued to worsen through the present. The Veteran was afforded an examination for his bilateral hearing loss in January 2019. The examination showed that the Veteran had hearing loss for VA purposes and diagnoses of bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not due to his active-duty service because there was no permanent threshold shift between his entrance and separation examinations. The Board notes that the Veteran's separation audiogram was taken several months before the Veteran's separation from service. Furthermore, the examiner did not consider the Veteran's lay statements regarding the onset of his hearing loss when formulating his opinion. Thus, the examination is inadequate because it does not consider the Veteran's competent lay statements about the onset of his hearing difficulties. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board notes that the mere absence of evidence of a hearing loss disability during service, or manifestations to include findings upon separation, is not fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Accordingly, remand is required for a new opinion that considers the Veteran's lay statements regarding the onset of his bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination for his claimed peripheral vestibular disorder, claimed as vertigo and dizzy spells. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the peripheral vestibular condition at least as likely as not related to service, including his hospitalization at Fort Dix following a dizzy spell. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Did peripheral vestibular disorder clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds peripheral vestibular disorder did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that peripheral vestibular disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including the dizzy spells experienced in 1966? Did the Veteran's peripheral vestibular disorder, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? 3. Schedule the Veteran for a VA psychiatric examination for his acquired psychiatric disability, to include adjustment disorder, depression, and anxiety. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is an acquired psychiatric disability at least as likely as not related to service, including the in-service diagnosis of depression? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Alternatively, is the acquired psychiatric disability at least as likely as not proximately due to pain associated with his service-connected lumbar disability? Is the acquired psychiatric disability at least as likely as not aggravated, i.e., worsened beyond its natural progression (even if not permanently), by his service-connected lumbar disability? 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not related to acoustic trauma during service or began during service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.