Citation Nr: 21010093 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-08 819 DATE: February 24, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a right lower extremity disability is remanded. Entitlement to service connection for a left lower extremity disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for chronic liver disease, to include hepatitis C, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for scars related to a back injury is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his current tinnitus symptoms began during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to August 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and specifically in October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In consideration of this holding, the Board has expanded and recharacterized the Veteran’s psychiatric claim as is reflected on the title page. Service connection for tinnitus Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski¸ 1 Vet. App. 49 (1990). Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating a tinnitus claim is to assess the credibility of the Veteran’s statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Veteran contends that he has tinnitus as a result of his military service, when he worked on the flight deck and was exposed to engines, sirens, aircrafts, and other flight line noise. His DD 214 shows that his military occupational specialty was that of an electrical/mechanical repairman. These in-service responsibilities support his assertions of in-service acoustic trauma. See DD 214. He describes ringing and buzzing in his ears and notes that these symptoms began in service and continue to the present today. The Board finds that the Veteran’s statements as to the onset of his tinnitus are credible and that his statements alone are sufficient to establish the criteria for service connection for tinnitus. The Board concedes his exposure to hazardous noise during his active duty.  As such, the in-service event element of his claim for service connection for tinnitus is met. In reaching this conclusion, the Board acknowledges that the  December 2015 VA audiological examiner indicated that the Veteran did not report recurrent tinnitus. However, the examination report did not include any of the Veteran’s contentions regarding his in-service noise exposure or his reports of ringing in the ears beginning in service and continuing to the present day. Thus, the Board assigns less probative value to the VA examination as it appears to be lacking information and is not as reliable as the Veteran’s own reports of his tinnitus symptoms. As previously noted herein, tinnitus symptoms are uniquely capable of lay observation. In this appeal, the Veteran’s lay statements as to when he experienced the onset of tinnitus symptoms are clearly more probative than the opinion of a medical examiner attempting to determine speculatively what the Veteran would have personally experienced years ago. The probative evidence supports this claim. Service connection for tinnitus is granted.  REASONS FOR REMAND Service connection for an acquired psychiatric disorder During his October 2019 Board hearing, the Veteran reported that he experienced anxiety during service, as he reported feeling overwhelmed and bothered by the constant noise and activity on the flight deck and felt that his duties doing crash and salvage work involved retrieving bodies from various locations and that this weighed heavily on him. Statements from fellow servicemembers corroborate the Veteran’s reported experiences and duties during service. See December 2019 and December 2019 Buddy Statements. The Veteran reported that he was seen for anxiety in 1991, but that he mostly has just dealt with it on his own. In November 2019, the Veteran attempted to obtain records related to this treatment, and the private treatment provider indicated that the medical records from this time period were no longer available. See November 2019 Response from Grady Health System. During his hearing, he reported that he currently is seen by private treatment providers for all of his treatment and that this treatment is with the Eagles Landing Family Practice. The most recent private treatment records on file are dated in June 2015, and records of more recent medical care may contain additional information regarding the Veteran’s claim for service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.159(c). Accordingly, an attempt should be made on remand to obtain those outstanding records related to the Veteran’s ongoing treatment and whether he has a currently diagnosed acquired psychiatric disability. Additionally, the Board finds that the Veteran should be afforded a VA examination to determine whether he has an acquired psychiatric disability, and if so, whether it is related to his active duty (or is otherwise consistent with his reported experiences during service.) To date, the Veteran has not been afforded a VA examination for his claimed acquired psychiatric disability. Service connection for gout The Veteran contends that his has gout related to his military service. His service treatment records (STRs) document complaints of joint pain, such as a January 1990 note of inflammation of non-specific origin in his right big toe and reports of stiffness in his ankles in July 1991. The Veteran’s available private treatment records show that he has been diagnosed with gout and reflects ongoing treatment for gout flare ups in his feet and elbows. The Veteran has not been afforded a VA examination to ascertain whether his gout disability is related to his military service. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A(d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third element, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. at 83. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that the Veteran should be afforded a VA examination to address the complete nature, extent, and etiology of any gout disability he may have. Service connection for a right lower extremity disability Service connection for a left lower extremity disability The Veteran contends that he has right and left lower extremity disabilities related to his military service. He reports that, during service, he would often fall and hit his knees or other parts of his legs on the metal stairs of the ship and would have to continue working during the day despite the pain he was experiencing in these extremities. See October 2019 Board Hearing. In his STRs, he reported foot trouble, and an examining physician noted occasional stiff ankles, in July 1991. As previously noted, the most recent private treatment records included in the claims file are dated in 2015. These private records indicate that the Veteran has been seen for patellar spurs in his knees, as well as left ankle pain with edema and extensive degenerative joint disease and swelling of the right leg extending from the ankle to the knee. Even without the most recent private treatment records available, the record does indicate that the Veteran has a current diagnosis and documented right and left lower extremity complaints during his service. The Veteran has not been afforded a VA examination to ascertain whether his right and left lower extremity disabilities are related to his military service. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that the Veteran should be afforded a VA examination to address the complete nature, extent, and etiology his right and left lower extremity disabilities. Service connection for bilateral hearing loss In December 2015, the Veteran was afforded a VA examination. The Board finds that the December 2015 VA examination opinion is inadequate for adjudication purposes. In this regard, the examiner focused on the lack of a permanent positive threshold shift in the Veteran’s STRs and the absence of hearing loss documented in the Veteran’s STRs. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was the result of an event in service. However, the examiner did not address the Veteran’s contentions regarding his military noise exposure. The examination report does not include any recording of the Veteran’s contentions about his in-service noise exposure whatsoever, and it is clear that the examiner did not afford the Veteran’s contentions any consideration in providing an opinion. When VA undertakes to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the December 2015 VA examination is inadequate, the Board finds that a new VA examination should be obtained to determine the nature, extent, and etiology of the Veteran’s bilateral hearing loss to address adequately the Veteran’s contentions regarding his in-service noise exposure. Service connection for chronic liver disease, to include hepatitis C The Veteran contends that he has a liver condition related to his military service. At the October 2019 hearing, he reported that he was diagnosed with hepatitis during service, but he was not sure what type he was diagnosed with. His STRs show a possible diagnosis of Hepatitis B and his private treatment records reflect a current diagnosis of fatty liver disease. In December 2015, the Veteran was afforded a VA examination related to his claimed liver disability. The examiner indicated that the Veteran’s claims file was not reviewed, but that some records were reviewed. The examiner diagnosed fatty liver disease and recorded the Veteran’s reports that he believed he was diagnosed with hepatitis C during service. The examiner opined it was less likely than not that the Veteran’s liver condition was related to his active service, as there was no documentation of diagnosis, treatment for, or management of hepatitis during service. This, however, is contrary to the Veteran’s STRs of record. A September 1990 note in the Veteran’s STRs show that he was seen for a follow-up of hepatitis, but did not know what type. In December 1990, the Veteran reported having hepatitis B on a dental examination questionnaire. It is unclear, based on the examiner indicating that the Veteran’s claims file was not reviewed but some records were reviewed, whether the examiner fully reviewed the Veteran’s STRs or if these were not considered or reviewed as part of the examination. For this reason, the Board finds the December 2015 VA examination to be inadequate and a new VA examination is necessary. Furthermore, as no examiner has opined as to whether the Veteran’s in-service hepatitis B is related to his current diagnosis of fatty liver disease, a remand is needed to address the etiology of the Veteran’s fatty liver disease. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Service connection for a back disability Service connection for scars related to a back injury The Veteran contends that he has a back disability and scars related to this disability associated with his military service. At the October 2019 hearing, he reported falling on a latch and injuring his back and that he was bandaged up the next day. While this injury is not documented in the Veteran’s STRs, the Board finds that the Veteran is credible to report his experiences during service and assigns probative weight to his contentions. He also reported that he injured his back while carrying bodies as part of his crash and salvage work, that he has a scar from falling on the latch, and that he has continued to have intermittent back pain since injuring his back during service. As previously noted, the most recent private treatment records in the claims file are from June 2015. The Veteran submitted additional, partial records from June 2016 and July 2016 for spinal injections, which suggest that he is currently being treated for a back disability. A remand is necessary to attempt to obtain the Veteran’s outstanding private treatment records, as he reported being seen for, and diagnosed with, a back disability by his private doctor, and these records may contain information relevant to the Veteran’s claim for service connection. Additionally, the Veteran has not been afforded a VA examination to ascertain whether his back disability and any related scars are related to his military service. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that the Veteran should be afforded a VA examination to address the complete nature, extent, and etiology of his back and scars disabilities. Accordingly, these matters are REMANDED for the following action: 1. Identify and obtain outstanding VA and private treatment records—including, but not limited to, private treatment records from Eagles Landing Family Practice since June 2015—and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder he may have. Following review of the claims folder, as well as an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed acquired psychiatric disorder onset in the Veteran’s service or is otherwise etiologically related to such service. The examiner is asked to discuss whether any such diagnosed acquired psychiatric disorder is consistent with the Veteran’s reported experiences in service. 3. Also, schedule the Veteran for a VA examination to determine the nature, extent, and etiology of his gout disability. The claims file should be made available to, and be reviewed by, the examiner. Any indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to: a. Identify/diagnose the gout that presently exists or that has existed during the appeal period. (The examiner is asked to identify the specific joints associated with the Veteran’s gout.) b. Opine as to whether it is as likely as not (i.e., at least a 50 percent probability or greater) that the diagnosed gout disability onset in, or is otherwise related to, the Veteran’s service or any incident therein. In answering this question, the examiner should consider, and address, the Veteran’s reported in-service elbow and foot pain and the note of inflammation of non-specific origin in his right big toe in January 1990. 4. Also, schedule an examination to determine the nature and etiology of any right and left lower extremity disabilities that the Veteran may have. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant pathology shown on examination should be annotated in the examination report. Following a review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose the specific right and left lower extremity disability(ies) that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that the diagnosed right and left lower extremity disability(ies) onset in, or is(are) otherwise etiologically related to, his service. In expressing this opinion, the examiner is asked to consider and address the Veteran’s contentions of injuring his knees during service after slipping on the stairs and hitting his knee on the metal and to address whether the Veteran’s disability is consistent with the Veteran’s reported experiences in service, to include constantly being on his feet and lifting and carrying people as part of his duties doing crash and salvage work. 5. Also, schedule the Veteran for a VA audiological examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s bilateral hearing loss. The Veteran’s claims file must be accessible for review in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All indicated studies, including audiometric testing and speech discrimination testing, must be accomplished. Following the review of the claims file and examination of the Veteran, the examiner must opine as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss is related to an in-service injury, event, or disease, specifically including the Veteran’s reports of noise exposure while working on the flight line. 6. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his any chronic liver disease, to include hepatitis C, he may have. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant pathology shown on examination should be annotated in the examination report. Following a review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose any chronic liver disease, to include hepatitis C, that presently exists or that has existed during the appeal period. b. Opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) that any such diagnosed liver disease, to include hepatitis C, onset in, or is otherwise related to, the Veteran’s service or any incident therein, to include the September 1990 follow-up appointment for hepatitis and the December 1990 indication of hepatitis B. 7. Also, schedule an examination to determine the nature and etiology of any back disability and related scars that the Veteran may have. The examiner should review the claims folder and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. Indeed, all relevant back pathology shown on examination should be annotated in the examination report. Following a review of the claims folder, as well as an interview with, and examination of, the Veteran, the examiner is asked to: a. Identify/diagnose any back disability that presently exists or that has existed during the appeal period. The examiner is also asked to identify any associated scars that presently exist. b. Opine as to whether it is at least as likely as not (a 50 percent or greater probability), that any diagnosed back disability and related scars onset in, or are otherwise etiologically related to, his service. In expressing this opinion, the examiner is asked to consider and address the Veteran’s contentions of injuring his back after falling on a latch and should consider and address whether the Veteran’s disability is consistent with his reported in service experiences, to include his reports of lifting bodies while doing crash and salvage work. 8. All of these examiners are advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion requested herein. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.