Citation Nr: 21021771 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-58 405A DATE: April 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, a depressive disorder, and/or anxiety disorder, is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for a left foot bunion is denied. Entitlement to service connection for a right foot bunion is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus had its onset in service. 2. The Veteran’s mental health disorder manifested in service and continuity of symptomatology is established. 3. The Veteran’s headaches had their onset in service. 4. The Veteran does not have a current left foot disability manifested by bunions. 5. The Veteran does not have a current right foot disability manifested by bunions. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, a depressive disorder, and/or anxiety disorder, are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a), 3.384. 3. The criteria for entitlement to service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left foot bunion are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a right foot bunion are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2013 to April 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a virtual hearing before the undersigned. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including psychoses (which includes schizophrenia), that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); 38 C.F.R. §§ 3.303 (b), 3.309(a), 3.384. 1. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus began in service. See Hearing Transcript at 4. His enlistment examination does not note any audiological abnormality and he is presumed sound at entry. See Service Treatment Records (STRs). The Veteran claimed service connection for tinnitus immediately after separation. See April 2014 VA Form 21-526EZ. At a November 2014 VA audiology examination, he reported an onset of tinnitus approximately eight months ago, which would mean an onset in March 2014. See November 2014 VA Audiology Examination Report. The Veteran did not report tinnitus at his separation examination. See STRs. However, this was conducted in February 2014, and thus his reported date of onset of tinnitus is consistent with nothing reported on his separation examination. The Board acknowledges that the November 2014 VA examiner opined that there is no military service-related noise-induced hearing pathology for which tinnitus can be medically linked. However, the Veteran is competent to report to onset of his tinnitus and his report is not contradicted by any evidence of record. Thus, no medical evidence is necessary to establish the Veteran’s claim, as here the evidence establishes an onset of tinnitus in service. Accordingly, the appeal as to this issue is granted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, a depressive disorder, and/or anxiety disorder, is granted. The Veteran asserts that his mental health condition began in service. The Board agrees. His enlistment examination report notes a normal psychiatric condition. During service, he reported suicidal ideation and was diagnosed with adjustment disorder with anxiety and depressed mood. A request for mental health evaluation notes that he was a good soldier with no depression issues prior to his mental health issue. See STRs. An October 2014 VA examiner diagnosed unspecified depressive disorder and unspecified alcohol-related disorder. The examiner opined that alcohol use is likely contributing to the Veteran’s ongoing depressive symptoms. However, this opinion does not weigh against the claim, as the use of the term “contributing” facially does not account for all the Veteran’s depressive symptoms. The Veteran submitted an opinion from E.T., a psychologist. E.T. recounted the Veteran’s pre-military, military, and post-military history, including his mental health and legal history. The examiner opined that based on the voluminous records in the case, the proper diagnosis for the Veteran was schizophrenia and it was not uncommon for individuals with this diagnosis to attempt to cover their symptoms using substances. E.T. noted that the psychotic features of schizophrenia typically emerge between the late teens and mid 30s with a peak age of first psychotic episode in the early to mid-20s for males, and half these individuals complain of depressive symptoms. The examiner noted that these criteria fit the Veteran’s behavioral pattern and there was no information showing that he had difficulties during the first year of his military career. Accordingly, in her opinion it was more likely than not that the Veteran’s schizophrenia was related to his military history. Dr. E.T.’s opinion is highly probative, as it accounts for the Veteran’s history and explains how the progression of his disease matches schizophrenia with an in-service onset. Indeed, as Dr. E.T.’s opinion is the most probative evidence of record and shows that the Veteran’s condition began in service, presumptive service connection is warranted based on continuity of symptomatology. Thus, the evidence weighs in favor of the claim, the appeal as to this issue is granted. 3. Entitlement to service connection for headaches is granted. The Veteran asserts that his headaches began in service. See, e.g., Hearing Transcript at 7-8. His STRs show treatment for headaches, diagnosed as tension headaches with sinusitis. See STRs. He testified that the same type of headaches continued to the present. See Hearing Transcript at 13-14. A November 2014 headaches examination report notes that the Veteran has not been diagnosed with a headache disorder, but that he reports developing headaches in service that continued to the present. The examiner noted that the Veteran’s headaches interfered with his ability to work. While the examiner did not provide a medical opinion as to the etiology of the Veteran’s headaches or offer a diagnosis, the Veteran is competent to diagnose the presence of headaches. Moreover, he was diagnosed with headaches in service and has re-iterated his complaints through the present. His competent and uncontradicted testimony is the most probative evidence of record. Accordingly, as the evidence shows the onset of a current headache disorder in service, the evidence weighs in favor of the claim and the appeal as to this issue is granted. 4. Entitlement to service connection for a left foot bunion is denied. 5. Entitlement to service connection for a right foot bunion is denied. The Veteran claimed service connection for bunions. See April 2014 VA Form 21-526EZ. His STRs show normal feet, with foot pain that resolved in service. See Separation Examination Report. The November 2014 VA examiner noted that there was no bunion “noted or claimed by the [V]eteran” on examination. See November 2014 Free Text Examination Report. At the Veteran’s Board hearing, he testified that his bunions made it hard to walk when he had on military boots. See Hearing Transcript at 6. Initially, the Board notes that the Veteran is competent to diagnose the presence of bunions. Thus, the Board will focus his claim on the condition that he competently claimed. Here, the evidence does not show a current disability at separation or at the examination in November 2014. While the Veteran had in-service symptomatology, the condition was noted to have resolved at separation, and no foot condition was noted. While the Veteran is competent to report the presence of bunions, the February 2014 separation examination and the November 2014 VA examination are more probative evidence as to the presence of bunions. Indeed, the Veteran himself denied bunions when he met with the November 2014 examiner. Additionally, the Veteran did not report current bunions at his Board hearing. Instead, his testimony relates to historical bunions during active duty. Thus, as the evidence does not show a current disability, the claim of entitlement to service connection for left foot and right foot bunions must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). REASONS FOR REMAND 6. Entitlement to service connection for a left shoulder disability is remanded. The November 2014 examiner noted left shoulder pain productive of a functional impairment. This constitutes a current left shoulder disability, even without a current diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, the Veteran reported left shoulder pain in service and shortly after service. See April 2014 VA Form 21-526EZ; November 2014 Examination Report. Accordingly, the duty to obtain a medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Updated VA and private treatment records should also be secured. 7. Entitlement to service connection for a left ankle disability is remanded. The November 2014 examiner noted left ankle pain productive of a functional impairment. This constitutes a current left ankle disability, even without a current diagnosis. Moreover, the Veteran reported left shoulder pain in service and shortly after service. Accordingly, the duty to obtain a medical opinion has been triggered. 8. Entitlement to service connection for a back disability is remanded. The November 2014 examiner noted back pain productive of a functional impairment. This constitutes a current back disability, even without a current diagnosis. Moreover, the Veteran reported back pain in service and shortly after service. Accordingly, the duty to obtain a medical opinion has been triggered. These matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. After completing #1 and #2, refer the claims file to an examiner for preparation of a medical opinion as to the nature and etiology of the Veteran’s claimed left shoulder disability. No further examination of the Veteran is necessary unless deemed otherwise by the examiner. The examiner should address the following: Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability had its onset in or is otherwise etiologically related to his active duty service, to include as a result of cumulative impact of his military duties (regular ruck marches carrying 40 pounds and having to carry heavy trees) and left shoulder pain complaint therein. In addressing this question, the examiner is advised that a functional impairment due to pain is a current disability for VA purposes, even in the absence of diagnosed pathology. Here, a functional impairment due to pain is shown on the November 2014 examination report and a current disability is conceded. The examiner should discuss the Veteran’s April 2014 claim for left shoulder pain, which he filed at separation from service. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion. 4. After completing #1 and #2, refer the claims file to an examiner for preparation of a medical opinion as to the nature and etiology of the Veteran’s claimed left ankle disability. No further examination of the Veteran is necessary unless deemed otherwise by the examiner. The examiner should address the following: Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left ankle disability had its onset in or is otherwise etiologically related to his active duty service, to include as a result of cumulative impact of his military duties (regular ruck marches carrying 40 pounds, including one during basic training where the outside of his ankle bent outward) and documented left ankle pain therein. In addressing this question, the examiner is advised that a functional impairment due to pain is a current disability for VA purposes, even in the absence of diagnosed pathology. Here, a functional impairment due to pain is shown on the November 2014 examination report and a current disability is conceded. The examiner should discuss the left ankle pain that the Veteran reported at his separation examination. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion. 5. After completing #1 and #2, refer the claims file to an examiner for preparation of a medical opinion as to the nature and etiology of the Veteran’s claimed back disability. No further examination of the Veteran is necessary unless deemed otherwise by the examiner. The examiner should address the following: Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability had its onset in or is otherwise etiologically related to his active duty service, to include as a result of cumulative impact of his military duties (regular ruck marches carrying 40 pounds and having to carry heavy trees). In addressing this question, the examiner is advised that a functional impairment due to pain is a current disability for VA purposes, even in the absence of diagnosed pathology. Here, a functional impairment due to pain is shown on the November 2014 examination report and a current disability is conceded. The examiner should discuss the back pain that the Veteran reported at his separation examination. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.