Citation Nr: 21022923 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-60 209 DATE: April 19, 2021 ORDER Entitlement to service connection for tinnitus, is granted. Entitlement to service connection for left ear hearing loss, is granted. REMANDED Entitlement to service connection for left knee condition, is remanded. Entitlement to service connection for right knee condition, is remanded. Entitlement to service connection for pulmonary embolism, is remanded. Entitlement to service connection for back condition, is remanded. Entitlement to service connection for deep vein thrombosis (DVT), is remanded. Entitlement to service connection for phlebitis, is remanded. Entitlement to service connection for bronchitis (also claimed as an undiagnosed illness to include upper respiratory infection with the symptoms of chronic cough and wheezing due to service in the Persian Gulf), is remanded. Entitlement to service connection for fatigue (also claimed as an undiagnosed illness to include the symptom of chronic fatigue due to service in the Persian Gulf), is remanded. Entitlement to service connection for central/obstructive sleep apnea, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression is remanded. Entitlement to service connection for memory loss, (also claimed as undiagnosed illness, to include memory loss due to service in the Persian Gulf), is remanded Entitlement to a compensable rating for right ear hearing loss, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. 2. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss began during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1989 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In March 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is caused as a result of being exposed to high frequency noise exposure to gunfire and explosions while serving. See March 2021 Hearing Transcript. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. See May 2015 VA examination. Tinnitus can also be identified through lay observations alone and the Veteran has offered competent and credible descriptions of experiencing tinnitus during the pendency of his claim. See Charles v. Principi, 16 Vet. App. 370 (2002). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's DD-214 confirms the Veteran's military occupational specialty (MOS) as a power generation equipment repairer. The Board also notes that the Veteran's MOS is listed in the Duty MOS Noise Exposure Listing as highly probable. As the Veteran has provided credible statements regarding in-service noise exposure during his testimony before the undersigned VLJ and his MOS is listed as a specialty that had a high probability of being exposed to acoustic trauma, the second element of service connection, an in-service incurrence, has been met. The Veteran was afforded a VA hearing loss and tinnitus examination in May 2015. However, a negative etiology opinion was provided because the examiner attributed the Veteran’s tinnitus to post-service recreational noise exposure. Although the VA medical nexus opinion in the record is unfavorable to the Veteran, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor. Considering the competent and credible lay testimony provided by the Veteran and a showing of continuity of symptomology, the Board finds that the evidence of record is in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for tinnitus is granted. 2. Entitlement to service connection for left ear hearing loss The Veteran contends that service connection for left ear hearing loss is warranted because it was caused due to in-service noise exposure. A review of the record shows that the Veteran has left ear hearing loss for VA purposes. See May 2015 VA examination. As noted above, the Veteran's DD-214 confirms the Veteran's military occupational specialty (MOS) as a power generation equipment repairer, and that the MOS is listed in the Duty MOS Noise Exposure Listing as highly probable. As the Veteran has provided credible statements regarding in-service noise exposure during his testimony before the undersigned VLJ and his MOS is listed as a specialty that had a high probability of being exposed to acoustic trauma, exposure to acoustic trauma has been conceded. The Board also observes that the RO granted service connection for the Veteran’s right ear hearing loss based on his MOS and exposure to acoustic trauma. However, service connection for his left ear was denied. A May 2015 VA examination was afforded to the Veteran. The examiner noted that the Veteran’s enlistment examination noted mild hearing loss at 6000 Hz, and therefore considered the Veteran’s left ear hearing loss a pre-existing condition and provided a negative etiology opinion. No opinion regarding aggravation was provided. The Board observes that hearing loss for VA purposes measures hearing thresholds between 500 Hz and 4000 Hz, and not 6000 Hz and aggravation was not addressed. Thus, the May 2015 VA examination is inadequate. Although the VA medical nexus opinion in the record is unfavorable to the Veteran, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor. Considering the competent and credible lay testimony provided by the Veteran and a showing of exposure to acoustic trauma, as well as continuity of symptomology and the previous grant of service connection for the right ear, the Board finds that the evidence of record is in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for left ear hearing loss is granted. REASONS FOR REMAND 3. Entitlement to service connection for left knee condition, is remanded. 4. Entitlement to service connection for right knee condition, is remanded. 5. Entitlement to service connection for pulmonary embolism, is remanded. 6. Entitlement to service connection for back condition is remanded. 7. Entitlement to service connection for deep vein thrombosis (DVT), is remanded. 8. Entitlement to service connection for phlebitis, is remanded. The Veteran contends that service connection is warranted for bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis, and phlebitis because the conditions were caused when he served on active duty. A review of the record shows that the Veteran had active service in Iraq from September 1989 to November 1991 during the Persian Gulf War. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran was afforded a VA Gulf War examination in September 2015. The examiner opined that the conditions claimed were less likely than not (less than 50% probability) incurred in, or caused by the claim in-service injury, event or illness. A rationale was provided that the Veteran’s bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis, and phlebitis had a clear and specific etiology and diagnosis. The examiner added that a review of the medical literature to include National Institutes of Health and PubMed reveal the weight of the available evidence does not show a specific exposure event experienced by the Veteran during Southwest Asia service to cause the claimed conditions. However, the Board observes that the examiner failed to review the evidence of record as the Veteran described exposure while serving in South Asia where he witnessed a SCUD missile attack, and involved in many gas attacks. See July 2017 notice of disagreement (NOD). The examiner also failed to issue an etiology opinion and address direct service connection because the RO failed to provide proper instructions to the medical examiner and only requested an opinion regarding Gulf War exposure. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 9. Entitlement to service connection for bronchitis (also claimed as an undiagnosed illness to include upper respiratory infection with the symptoms of chronic cough and wheezing due to service in the Persian Gulf), is remanded. The Veteran contends that service connection is warranted for an undiagnosed illness, to include upper respiratory infection with the symptoms of chronic cough and wheezing due to service in the Persian Gulf. The Board observes that this issue may be intertwined with the pulmonary embolism issue being remanded above. The Veteran’s representative testified before the undersigned VLJ in March 2021 that the Veteran does not have a diagnosis of bronchitis. The representative added that that Veteran had COVID-19 and was on life support and now doing better, and that he had to be on oxygen, and that his undiagnosed respiratory condition causes chronic cough making him susceptible to bronchitis, pneumonia and other conditions. See March 2021 Hearing Transcript. A VA respiratory conditions examination was afforded to the Veteran in September 2015. A diagnosis of pulmonary embolism was provided. The examiner noted that the Veteran reported that he had had bronchitis approximately four times and felt he was more susceptible to lung problems. However, the examiner also included that the Veteran may have had bronchitis or pneumonia and that they have resolved and do not represent a current condition of disability. As noted above, no etiology opinion was provided for the diagnosis of pulmonary embolism or the symptoms of chronic cough and wheezing. The Board observes that a remand is required for a new VA medical examination. The Veteran reports experiencing chronic cough and wheezing. See March 2021 Hearing Transcript. At this point, the Veteran has not been fully evaluated to determine whether or not there is a diagnosis for his cough and wheezing symptoms during the September 2015 VA examination, or whether the symptoms are attributable to the pulmonary embolism, or whether these symptoms are etiologically related to the Veteran’s service in the Persian Gulf. Accordingly, on remand, the Veteran should be scheduled for an examination to determine the nature and etiology of his respiratory symptoms. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 10. Entitlement to service connection for fatigue (also claimed as an undiagnosed illness to include the symptom of chronic fatigue due to service in the Persian Gulf), is remanded. The Veteran contends that service connection for the symptom of chronic fatigue is warranted as the condition first manifested during his service in the Persian Gulf. A review of the record shows that a September 2017 rating decision granted service connection for fibromyalgia during the pendency of this appeal. However, the Veteran’s representative testified in March 2021 that the symptom of fatigue is an additional symptom not included within the grant of service connection for fibromyalgia, and related to Gulf War service. A review of the record shows that the Veteran was afforded a VA examination in September 2015. The September 2015 VA examiner did not note that the Veteran had a diagnosis of fibromyalgia. Another VA examination in September 2015 for chronic fatigue syndrome did not show that the Veteran had a diagnosis of chronic fatigue syndrome. No etiology opinion was provided for the symptom of chronic fatigue. Another VA examination was afforded to the Veteran in August 2017. During the August 2017 VA examination, a diagnosis of fibromyalgia was provided, and the symptom of fatigue was noted as attributable to the Veteran’s fibromyalgia. However, a new VA examination is needed to assess and clarify whether the Veteran’s symptom of chronic fatigue is a symptom of already service-connected fibromyalgia, or a separate undiagnosed symptom related to his service in the Persian Gulf. 11. Entitlement to service connection for central/obstructive sleep apnea, is remanded. The Veteran contends that service connection is warranted for sleep apnea because the condition was caused when he served on active duty. The Veteran was afforded a September 2015 VA examination. A diagnosis of obstructive sleep apnea, as well as central sleep apnea was provided. However, the examiner was not instructed by the RO to provide an etiology opinion for sleep apnea, and one was not provided. Thus, the examination is inadequate. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 12. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression is remanded. The Veteran contends that service connection for anxiety, depression and PTSD related to stressors he has identified while serving in the Persian Gulf is warranted. A review of the record shows that an October 2015 VA examination noted a diagnosis of generalized anxiety disorder. However, a separate diagnosis of depression and PTSD was not provided. The examiner issued a negative opinion that the Veteran’s anxiety disorder is less likely than not related to a specific exposure event experience by the Veteran during service in Southwest Asia. However, a nexus opinion regarding direct service connection was not provided as the RO failed the provide the proper instructions to the medical examiner. In an August 2016 NOD and during the March 2021 hearing, the Veteran reported in-service stressors involving witnessing dead bodies, witnessing a SCUD Missile attack and involved in many feared gas attacks. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 13. Entitlement to service connection for memory loss, (also claimed as undiagnosed illness, to include memory loss due to service in the Persian Gulf), is remanded. The Veteran contends that service connection is warranted for the symptom of memory loss due to Persian Gulf service. The Board observes that this issue may be intertwined with the psychiatric conditions above. The Veteran was afforded a VA examination for his mental health conditions in October 2015. However, the symptom of forgetfulness and distractibility that the Veteran reported during the examination was noted, but the examiner found that it was not so severe as to raise concerns to be a diagnosable neurocognitive impairment. The Veteran testified before the undersigned VLJ in March 2021 that he forgets his medications and the subject of recent conversations he has had, but has no diagnosis of a traumatic brain injury (TBI) or other condition. See March 2021 Hearing Transcript. As the date of the previous VA examination for his mental health condition was over five years ago, and the Veteran testified that his condition is worse now, a new VA examination is warranted to determine whether a diagnosable condition exists, or whether service connection is warranted for an undiagnosed condition due to service in the Persian Gulf. 14. Entitlement to a compensable rating for right ear hearing loss, is remanded. The Veteran contends that a compensable rating is warranted for his right ear hearing loss because his condition has worsened. See March 2021 Hearing Transcript. A review of the record shows that that Veteran’s last hearing examination was conducted in May 2015. Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hearing loss. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis, phlebitis, undiagnosed respiratory and memory loss, central/obstructive sleep apnea, fatigue, psychiatric conditions and the current severity of the claimed worsening of his hearing loss. The examiner must review the entire claims file, including a copy of this Remand. The examiner is asked to provide responses to the following: A) Is the etiology of the Veteran’s bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis and phlebitis and central/obstructive sleep apnea (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. B) Is the pathophysiology of the Veteran’s bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis, phlebitis and central/obstructive sleep apnea (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. C) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral knee condition, pulmonary embolism, back condition, deep vein thrombosis, phlebitis and central/obstructive sleep apnea was incurred in, or is otherwise related to, his active service? 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed undiagnosed conditions, to include symptoms of chronic fatigue, respiratory condition/chronic cough, wheezing and memory loss. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis (to include fibromyalgia, pulmonary embolism or psychiatric conditions)? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed conditions were incurred in, or is otherwise related to, his active service? 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of his acquired psychiatric conditions to include posttraumatic stress disorder (PTSD), anxiety, and depression. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include stressors involving witnessing dead bodies, witnessing a SCUD Missile attack and involved in many feared gas attacks. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss. The examiner should examine both ears and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Provide a detailed rationale to support the opinions. In providing the requested opinions, consider the Veteran’s description of his 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 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? 5. The RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken prior to readjudication, before the claims file is returned to the Board. (Continued on the next page)   6. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.