Citation Nr: 21077276 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-06 783 DATE: December 29, 2021 ORDER Service connection for tinnitus is granted. Service connection for headaches is granted. Service connection for blurred vision is granted. The issue of entitlement to service connection for high cholesterol is dismissed. The issue of entitlement to service connection for lipoma is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for low back pain is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for cirrhosis of the liver is remanded. THE VETERAN'S CONTENTIONS In regard to the Veteran's tinnitus and hearing loss, he testified his primary job during his service in the National Guard was as a truck driver, which involved being around gunfire and noise from tanks and trucks. See August 2021 Board hearing transcript, p. 3. He stated that he did not notice that he had trouble hearing until the end of his service in the National Guard. Id., p. 4. He reported that the ringing in the ears did start during his National Guard service, and he noticed the hearing loss one year after he got out. Id. In regard to the Veteran's headaches, he contended that he experienced headaches during service, but that he did not seek treatment during service because he "wanted to be tough about it." Id., p. 19. He stated that his headaches were due to his job in the military as a truck driver, which involved staying up all of the time at night, doing missions, hauling, and pulling. Id. He asserted that he self-treated his headaches with over-the-counter medications. Id., p. 19. He stated that he sought treatment within a year after his discharge from service. Id., p. 19. He reported that he typically had headaches twice a week, and that they caused blurred vision. Id., pp. 20-21. The Veteran testified that his blurred vision began while he was in service. Id., p. 24. He stated that he sought treatment approximately a year after his service. Id., p. 25. However, he contended that he was not aware of a diagnosis for his blurred vision. Id. In regard to his acquired psychiatric disorders, the Veteran contended that he had stress, depression, and anxiety while serving in the National Guard. Id., p. 9, 11. He stated that he has anxiety attacks. Id., p. 11. The Veteran testified that he began to experience problems with anxiety and depression when he was in the military. Id., p. 13. He stated that there was a loud explosion that scared him. Id. He reported that he initially sought treatment for a mental health condition approximately one year after service. Id., p. 14. He also stated that his depression and trouble sleeping are due to his physical pain. Id., p. 15. The Veteran testified that his back pain began in the military as he was pulling crates, ammunition, and hoses over rough terrain, changing flat tires, and performing other duties that caused wear and tear on his back. Id., p. 27. He stated that he sought treatment approximately a year after his service. Id., p. 28. The Veteran testified that he began experiencing problems with his knees while in the military, during which time he was climbing in and out of tracks on rough terrain. Id., p. 31. He reported that he had knee pain all of the time, which kept him up at night and that he had flareups two to three times per week. Id., p. 14. He testified that he had meniscus tears in his knees and had surgery done on the left knee; and that his knees pop and hurt. Id., pp. 14, 30. In regard to hypertension, the Veteran testified that his stress, depression and anxiety while in the National Guard caused his hypertension. Id., p. 9. He testified that he sought treatment with a private physician approximately one year to one and one half years after his service. Id., p. 10. The Veteran testified that his liver condition occurred a long time ago due to him trying to relieve his stress and depression. Id., pp. 34-25. He stated that he used alcohol to self-medicate to cope with chronic pain. Id., p. 35. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset during his active duty service. 2. The Veteran's headaches had their onset during his active duty service. 3. The Veteran's blurred vision had its onset during his active duty service. 4. On August 2, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he requested to withdraw his appeal of the issues of entitlement to service connection for high cholesterol and lipoma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for blurred vision are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for withdrawal of an appeal by the Veteran on issues of entitlement to service connection for high cholesterol and lipoma are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1985 to August 1985, and additional service in the Army National Guard from July 1984 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2018 and January 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony in a hearing with the undersigned Veterans Law Judge on August 2, 2021. A transcript of that hearing is of record. The Veteran submitted private treatment records in August 2021, subsequent to the most recent January 2019 and February 2019 Statements of the Case (SOCs). As all issues in this decision have either been granted in full or remanded to the RO for additional development, the Board finds that there is no prejudice to the Veteran in issuance of this decision. As the record reflects a diagnosis of anxiety and depression, the issue of entitlement to service connection for anxiety attacks (also claimed as chronic insomnia, adjustment disorder, depression, memory loss, and nightmares) has been broadened to include all acquired psychiatric disabilities and is recharacterized accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.) 1. Tinnitus Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The Court has also held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran's DD 214 shows that he served as a motor transport operator during his active duty from March 1985 to August 1985. This military occupational specialty (MOS) has a moderate probability of noise exposure. The Veteran was provided a VA examination in regard to his tinnitus in September 2018. At that time, the Veteran reported that his tinnitus began three years prior, and, accordingly, the VA examiner provided negative nexus opinion in regard to the relationship between the Veteran's tinnitus and his service. However, as noted above, the Veteran subsequently testified that the ringing in the ears started during his service. See August 2021 Board hearing transcript, p. 4. Tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Resolving doubt in the Veteran's favor, the Board finds the Veteran's contentions that he experienced tinnitus since service to be competent and credible. Further, in a March 2021 private treatment record, an audiologist noted that tinnitus may be secondary to loud noise exposure. In light of the foregoing, the Board finds service connection for tinnitus is warranted. 2. Headaches and blurred vision The Veteran's private treatment records show blurred vision since September 2005 and headaches since November 2006. See private treatment records from Dr. K.P. The Veteran's wife testified that the Veteran has been experiencing headaches as long as she had known him (since 1999), and that they have gotten worse over the years. See August 2021 Board hearing transcript, p. 23. The Board finds that the Veteran is competent to report headache and blurred vision and that his contentions regarding the onset of his headaches and blurred vision during service and his symptoms since service are credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Resolving doubt in the Veteran's favor, the Board finds that service connection is warranted for headaches and blurred vision. 3. High cholesterol and lipoma The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn this appeal on issues of entitlement to service connection for high cholesterol and lipoma and, hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the appeal on issues of entitlement to service connection for high cholesterol and lipoma and these issues are dismissed. REASONS FOR REMAND The Board finds that, while the Veteran was in the Army National Guard from July 1984 to December 2004, he may have had additional periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) service, aside from his active service from March 1985 to August 1985. The Board notes that while the Veteran's claims file contains a DD Form 214 documenting the Veteran's period of active duty service from March 1985 to August 1985, it is unclear from the claims file the dates of all periods of ACDUTRA and INACDUTRA. As service connection may be granted for a disease or injury incurred in or aggravated during a period of ACDUTRA or INACDUTRA, the Board finds that verification of the Veteran's ACDUTRA and INACDUTRA periods with the National Guard is required prior to the adjudication of the service connection issues on their merits. 1. Bilateral hearing loss A July 1984 VA examination for enlistment into the National Guard showed hearing loss in the right ear for VA purposes as the Veteran's auditory threshold was 40 decibels at 500 Hertz. The Veteran did not have hearing loss for VA purposes in the left ear at that time. As the Veteran's hearing loss of the right ear existed prior to military service, the claim is one of entitlement to compensation based on aggravation of a preexisting disability. 38 U.S.C. § 1153. Where a preexisting disease or injury is noted on the entrance examination, 38 U.S.C. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disability at issue. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a noncombat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under 38 U.S.C. § 1153 unless the underlying condition worsened. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). A June 1993 audiogram showed hearing loss for VA purposes in the right and the left ear. The audiogram indicated that the Veteran's right ear hearing loss had worsened. A VA audiological examination was provided in September 2018. Hearing loss could not be tested at the examination. The examiner determined the results were not valid for rating purposes as pure tone thresholds were inconsistent and not indicative of organic hearing loss despite re-instruction. The examiner noted that the Veteran admitted pure tone thresholds were 75 to 90 decibels despite responding to speech stimuli at 45 decibels during testing and correctly responding to live speech without the use of visual cues at 65 decibels. The examiner also determined that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. A March 2021 private treatment record diagnosed hearing loss and the examiner stated that she anticipated that the Veteran probably had a substantial degree of sensorineural hearing loss secondary to his military exposure. However, the private physician also noted that the accuracy of the hearing testing was questionable and that there was concern that the Veteran was unable to give reliable responses, whether due to processing deficit or otherwise. The March 2021 audiometric evaluation showed right ear 95 to 100 decibels from 250 to 1000 Hertz, rising to 90 decibels at 2000 Hertz, 85 decibels at 4000 Hertz, and 80 decibels at 8000 Hertz in the right ear. The left ear showed 75 to 85 decibels from 250 to 2000 Hertz, sloping to 90 decibels at 4000 Hz, and 80 decibels at 8000 Hz. Word recognition scores were 64 percent in the right ear and 84 percent in the left ear. The Veteran's wife testified that she had known her husband since 1999 and that he has had hearing loss since she has known him, which had gotten worse over the years. See August 2021 Board hearing transcript, pp. 7-8. The Board finds that a new VA examination is warranted to determine if the Veteran has a current hearing loss disability; and if, so, whether it is was caused or aggravated by his service. As the Veteran's right ear hearing loss pre-existed service, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the disability WAS NOT aggravated (i.e. permanently worsened beyond its natural progression) during service and whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. 2. Acquired psychiatric disorder The Veteran testified that he received psychiatric treatment through his employee assistance program. See August 2021 Board hearing transcript, p. 17. These records are not contained in the claims file. On remand, these records must be requested. The Veteran has diagnoses of anxiety, depression, and insomnia. See private treatment records. The Veteran has not been provided a VA examination regarding his psychiatric conditions. In light of the Veteran's contentions, the Board finds that there is sufficient indication that the Veteran has an acquired psychiatric disorder that is associated with his service. As such, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Low back pain, a bilateral knee condition, hypertension, and cirrhosis of the liver The Veteran has diagnoses of chronic low back pain, osteoarthritis of the bilateral knees, hypertension, and cirrhosis of the liver. See private treatment records. The Veteran has not been provided a VA examination regarding his low back pain, osteoarthritis of the bilateral knees, hypertension, and cirrhosis of the liver. In light of the Veteran's contentions, the Board finds that there is sufficient indication that these conditions may be associated with his service. As such, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of these conditions. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Contact the Veteran's Army National Guard Unit, the Defense Finance and Accounting Service, or any other appropriate sources to verify the Veteran's periods of ACDUTRA and INACDUTRA. Any negative responses should be in writing and should be associated with the claims file. 2. After obtaining authorization from the Veteran, request the Veteran's psychiatric records from his employee assistance program, which he referenced at the August 2021 Board hearing, and associate these records with the claims file. Any negative responses should be in writing and should be associated with the claims file. 3. Forward the Veteran's claims file to an appropriate VA clinician to provide a physical examination of the Veteran to assess his hearing loss. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. Thereafter, the clinician should address the following: a.) Conduct an audiogram and speech discrimination testing using the Maryland CNC word list testing and determine whether the Veteran has a current hearing loss disability. b.) In regard to the Veteran's right ear hearing loss, please state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's right ear hearing loss WAS NOT aggravated (i.e. permanently worsened beyond its natural progression) during service and whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. c.) In regard to the left ear hearing loss, please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service. For the purpose of providing the opinion(s) requested, please accept as valid the Veteran's contentions that his primary job during his service in the National Guard was as a truck driver, which involved being around gunfire and noise from tanks and trucks; and state whether a nexus between the Veteran's hearing loss and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 4. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's acquired psychiatric condition, low back pain, bilateral knee condition, hypertension, and cirrhosis of the liver. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's acquired psychiatric condition, low back pain, bilateral knee condition, hypertension, and/or cirrhosis of the liver had its onset in, was caused by, or is otherwise related to service. For the purpose of providing the opinion(s) requested, please accept as valid the Veteran's statements that: 1) his back pain began in the military as he was pulling crates, ammunition, and hoses over rough terrain, changing flat tires, and performing other duties that caused wear and tear on his back; 2) he began experiencing problems with his knees while in the military, during which time he was climbing in and out of tracks on rough terrain; 3) he had stress, depression, and anxiety while serving in the National Guard; 4) his stress, depression and anxiety while in the National Guard caused his hypertension; 5) his cirrhosis of the liver was a result of him self-medicating to relieve his stress, depression, and chronic pain; and state whether a nexus between any of these conditions and the Veteran's service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.