Citation Nr: 21015194 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-22 679 DATE: March 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness, or exposure to chemicals in service and/or as due to nerve agent pills is remanded. Entitlement to service connection for a back disability, to include as due to an undiagnosed illness, or exposure to chemicals in service is remanded. Entitlement to service connection for a bilateral knee disability, to include as due to an undiagnosed illness, or exposure to chemicals in service is remanded. Entitlement to service connection for a neck disability, to include as due to an undiagnosed illness, or exposure to chemicals in service is remanded. Entitlement to service connection for a right elbow disability, to include as due to an undiagnosed illness, or exposure to chemicals in service is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has competently and credibly reported that his tinnitus began during his service and has been recurrent since that time. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to August 1984, and from January 1991 to May 1991, to include service in Southwest Asia. The Veteran testified before the undersigned Veterans Law Judge in July 2020. A copy of the transcript is of record. At the hearing there was a question as to whether the Veteran’s right elbow or left elbow was before the Board. See BVA Hearing (T.) at 19. A review of the claims file confirms that service connection for the Veteran’s right elbow has been properly appealed, his left elbow is not before the Board at this time. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus began in service and has been continuous since then. See BVA July 2020 Hearing Testimony. The Veteran’s DD 214 for his period of service between January 1991 and May 1991 reflects that he received the expert badge in using a 45-caliber pistol. It additionally notes service in Southwest Asia. Current treatment records reflect that the Veteran has a diagnosis of tinnitus. In a July 2016 VA addendum opinion, completed with respect to an otitis externa claim not currently before the Board, the VA examiner noted that the Veteran has tinnitus and these symptoms are more attributable to his noise exposure to SCUD missiles and artillery from the military. The Board finds that the Veteran suffered an in-service injury, namely exposure to noise. He has provided competent, credible, and probative statements regarding specific noise exposure. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). The Board also finds the Veteran competent and credible with regard to his claim of incurrence of tinnitus in service and continuity of symptoms of tinnitus since service. There is evidence that he had some noise exposure in service, although the amount is unclear. Additionally, his service treatment records are not available for review. See February 2016 Memorandum. The Board also finds the Veteran’s statements that he has been experiencing tinnitus continuously since his separation from service to be competent and credible and places great weight of probative value on them. Probative evidence supporting these contentions is the July 2016 addendum opinion which essentially relates the Veteran’s tinnitus to noise exposure in service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt in the matter, which is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. With respect to all remaining issues, the Board notes that the Veteran’s service treatment records have been determined to be unavailable. See February 2016 Memorandum. The Board finds that the Veteran’s personnel records, should be obtained as they may provide important information regarding the Veteran’s service, especially given that his service treatment records cannot be located. Although it appears a request was sent out for his personnel records in June 2015, a response was never obtained. On remand an additional request to obtain these records should be completed. With respect to all remanded issues below (except for bilateral hearing loss), the Veteran alleges that his claimed conditions may be secondary to exposure to chemicals in service and/or taking nerve agent pills in service. See VA-9, BVA testimony. In support of the Veteran’s contentions that he was exposed to chemicals in service, he has submitted a December 2000 letter from the Office of the Secretary of Defense to the Veteran informing him that he may indeed have been exposed to very low levels of chemical agent for a brief period of time (less than 3 days) during his Gulf War service in March 1991. A letter sent to the Veteran in September 2005, from the Office of the Assistant Secretary of Defense, is also included in the file. The letter again mentioned his possible exposure to very low levels of chemical warfare agents. The Veteran also submitted a June 2015 statement from a fellow service member that served with the Veteran in Saudi Arabia. He reported that they had taken pills in case of a nerve gas attack and had been exposed to nerve gas and heavy thick smoke. 1. Entitlement to service connection for GERD, to include as due to an undiagnosed illness, or exposure to chemicals in service and/or as due to nerve agent pills. The Veteran was accorded a June 2016 VA examination. In an attached opinion, the VA examiner stated that they would be resorting to mere speculation to opine whether the Veteran’s GERD is the result of military service, as the earliest records of treatment are in 2003. The examiner noted that if additional evidence is available, they would need to reevaluate but without evidence that the Veteran had been treated since service it is less likely that his GERD is related to military service. The Board notes that the Veteran testified at his July 2020 BVA hearing that he initially sought treatment for his GERD around 1991 or 1992. Additionally, the Board notes that treatment records in the file reflect a diagnosis as early as July 2000, not 2003 as noted by the examiner. Further, the Board notes that in a March 2017 statement, from the Veteran’s wife, she noted that she had been married to the Veteran at the time he was sent to Saudi Arabia and when he returned from his deployment he had reflux and stomach issues and the problems continue to this day. The Veteran has additionally asserted that took pills called pyridostigmine bromide (PDB) which are known to have long-term side-effects including gastric issues. See BVA Hearing T. at 10. The Board finds that the June 2016 opinion is inadequate, and an additional VA examination and opinion should be obtained. 2. Entitlement to service connection for a back disability, to include as due to an undiagnosed illness, or exposure to chemicals in service. 3. Entitlement to service connection for a bilateral knee disability, to include as due to an undiagnosed illness, or exposure to chemicals in service. 4. Entitlement to service connection for a neck disability, to include as due to an undiagnosed illness, or exposure to chemicals in service. 5. Entitlement to service connection for a right elbow disability, to include as due to an undiagnosed illness, or exposure to chemicals in service. The Veteran asserts that he has a back disability, bilateral knee disability, neck disability and right elbow disability either due to an undiagnosed illness or as a result of exposure to chemicals in service. In the March 2017 statement from his wife, she noted that the Veteran was healthy and in great physical condition when he deployed to Saudi Arabia. She stated that when he returned, he looked sick. She reported that he has joint pain and body aches for which he frequently takes Tylenol and Motrin. The Veteran was afforded an April 2016 VA Gulf War General Medical Examination. The VA examiner noted that without further comprehensive physical testing, laboratory tests, and/or satisfactory medical evidence she would be unable to provide an opinion without resorting to mere speculation. Based on the VA examiner’s statements, it is apparent that additional testing is needed to properly evaluate the Veteran’s claims. As such, the Board finds that additional VA examinations and opinions are needed to address his claims. 6. Entitlement to service connection for bilateral hearing loss. A January 2000 private treatment record reflects a diagnosis of bilateral high frequency sensorineural hearing loss. In a July 2016 VA Addendum opinion, a VA examiner provided a negative opinion regarding an otitis externa claim not before the Board at this time. However, in discussing rationale for this opinion, she noted that the Veteran had symptoms of tinnitus and hearing loss which are more attributable to his exposure to SCUD missiles from the military. Unfortunately, although audiological findings were referenced in the January 2000 private treatment record, audiological results are not of record in the claims file. It is unclear if the Veteran’s hearing acuity meets the regulatory criteria to be considered hearing loss under the governing VA regulation. See 38 C.F.R. § 3.385. As such, the Board finds that the Veteran should be afforded a VA audiological examination. The matters are REMANDED for the following actions: 1. Associate the Veteran’s military personnel file with the electronic claims file. All attempts to obtain the Veteran’s personnel records should be documented in the claims file. 2. Following the development above, arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any GERD, back disability, bilateral knee disability, neck disability and right elbow disability found to be present and their relationship, if any, to his military service. The VA examiner is asked to address the following questions: GERD Whether it is at least as likely as not (a probability of 50 percent or greater) that any GERD had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include exposure to chemical agents and/or PDB pills. Back Disability The examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers from a back disability. If a back disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service, including to service in Southwest Asia, and including potential exposure to chemical agents. Bilateral Knee Disability The examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers from a bilateral knee disability. If a bilateral knee disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service, including to service in Southwest Asia, and including potential exposure to chemical agents. Neck Disability The examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers from a neck disability. If a neck disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service, including to service in Southwest Asia, and including potential exposure to chemical agents. Right Elbow Disability The examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers from a right elbow disability. If a right elbow disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service, including to service in Southwest Asia, and including potential exposure to chemical agents. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. If the Veteran’s persistent muscle pain and joint pain symptoms cannot be ascribed to any known clinical diagnosis, the examiner must specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. Any opinion(s) offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinion without resort to speculation, he or she must so indicate and must provide an explanation as to why such a finding is made. 3. Schedule the Veteran for a VA audiological examination which addresses the nature and etiology of his bilateral hearing loss. The claims file must be provided to the examiner for review. All appropriate tests and studies—specifically, audiometric and speech discrimination testing—should be accomplished. Based on a thorough review of the claims file and the results of the Veteran’s examination, the examiner is asked to provide well-reasoned responses to each of the following: (a) Indicate whether the Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. (b) If bilateral hearing loss for VA purposes is demonstrated, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hearing loss began during service, within one year of service separation, or is otherwise casually related to service, to include the Veteran’s acknowledged in-service noise exposure. (Continued on the next page)   Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinion without resort to speculation, he or she should so indicate and explain why such a finding is made. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.