Citation Nr: 21023857 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-48 567 DATE: April 21, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of service connection for a right shoulder disability is remanded. The issue of service connection for a left shoulder disability is remanded. The issue of service connection for a low back disability is remanded. The issue of service connection for a right knee disability is remanded. The issue of service connection for a left knee disability is remanded. The issue of service connection for a right ankle disability is remanded. The issue of service connection for a left eye disability is remanded. The issue of service connection for an acquired psychiatric disorder, to include a dysthymic disorder, is remanded. The issue of service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service and has continued since. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 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 May 2003 to May 2007, including service in the Southwest Theater of Operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran presented testimony before the Board. A transcript of the hearing has not yet been associated with the file; however, one is not necessary for a decision on the appeal. The claim of service connection for an acquired psychiatric disorder (claimed as insomnia) has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). REFERRED The issue of service connection for a left ankle disability was raised during the April 2021 Board and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 38 C.F.R. § 20.904(b). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Organic disease of the nervous system (which we consider tinnitus to be) is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496 97(1997)); see 38 C.F.R. § 3.303(b). During the April 2021 Board hearing, the Veteran testified that his tinnitus is due to in-service noise exposure and that he has experienced constant ringing in his ears in and since service. Specifically, he reports that during service, he was exposed to loud noise exposure, such as generators, trucks, and weapons firing. For the reasons below, service connection for tinnitus is warranted. Tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that ringing in the ears is capable of lay observation). Here, the Veteran reports ringing in his ears; thus, a current disability has been demonstrated. With respect to the in-service injury or event, the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was a multichannel transmission systems operator maintainer, he served in a designated imminent danger area, and that he was stationed in Iraq from January 2005 to January 2006. The Veteran’s testimony concerning his in-service noise exposure are consistent with his MOS. Therefore, his in-service noise exposure and that he had ringing in his ears during service is consistent with the places, types, and circumstances of his service, and is credible. See 38 U.S.C. § 1154(a). Thus, the in-service injury requirement has been met. This case turns on third element of service connection, which is whether the Veteran’s tinnitus is related to or had its onset during his military service. During the April 2021 Board hearing, the Veteran testified that he had experienced constant ringing in his ears in and since service. The Veteran is competent to report factually observable occurrences in service and the timing of the observable symptoms of his disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, there is no evidence or opinion to the contrary. Additionally, there is no evidence of record to find that the Veteran is not credible. The Veteran provided competent, credible testimony that he had experienced constant ringing in his ears in and since service. The evidence is therefore at least evenly balanced as to whether the Veteran’s tinnitus had its onset in service and has continued since. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for a right shoulder disability is remanded. 2. The issue of service connection for a left shoulder disability is remanded. 3. The issue of service connection for a low back disability is remanded. 4. The issue of service connection for a right knee disability is remanded. 5. The issue of service connection for a left knee disability is remanded. 6. The issue of service connection for a right ankle disability is remanded. 7. The issue of service connection for a left eye disability is remanded. 8. The issue of service connection for an acquired psychiatric disorder, to include a dysthymic disorder (claimed as insomnia), is remanded. 9. The issue of service connection for bilateral hearing loss is remanded. The Veteran claims that his acquired psychiatric disorder, bilateral hearing loss, right shoulder, left shoulder, low back, right knee, left knee, right ankle, and left eye disabilities are due to his military service, as these disabilities are the result of in-service injuries. The Veteran’s DD Form 214 reveals that his MOS was a multichannel transmission systems operator maintainer, he served in a designated imminent danger area, and that he was stationed in Iraq from January 2005 to January 2006. The Veteran’s service treatment records (STRs) include a January 2007 health record that shows a diagnosis of deformity of the knee and genu valgum. Additionally, STRs show right shoulder strain and pain in October 2003, back pain in November 2003, knee pain in August 2006. A May 2005 STR reflects that the Veteran had an evaluation for his left eye, as he had a foreign body in his left eye. In the Veteran’s January 2007 separation report of medical history, he reported low back pain, bilateral knee pain, and that his knee was aching; the Veteran and the examining physician noted bilateral genu valgum. Additionally, during the April 2021 Board hearing, the Veteran testified that a few months following his separation from service, he experienced sleep impairment and sought treatment from a therapist. The Veteran’s claims file does not include VA or private treatment records, except for a private treatment record that shows that the he sought treatment for his eye. During the April 2021 Board hearing, the Veteran testified that for most of his claimed musculoskeletal conditions, he does not receive treatment but instead takes pain medication and regulates his activities, as needed. In this case, the Veteran was scheduled for VA examinations regarding some of his disabilities on appeal; he failed to appear. See exam details (August 2017). In the Veteran’s September 2017 VA Form 9 and during the April 2021 Board hearing, the Veteran reported that he did not receive notice of the scheduled examinations, as the examination notifications were mailed to a former address that he did not reside. To this extent, the evidence appears to confirm that the Veteran did not receive the mailed examination notification, as it was mailed to the Veteran’s former address. For example, the claims file includes a July 2017 letter, notifying the Veteran that he would be scheduled for VA examinations regarding some of his disabilities on appeal. See VA notification letter (July 2017) (the July 2017 letter shows that it was mailed to a PO box in Mesa, Arizona) The evidence shows that the Veteran currently resides in a location different than where the July 2017 letter was mailed. See Board notification letter (May 2019) (the May 2019 letter shows that it was mailed to a street address in Mesa, Arizona). Accordingly, the Board finds that the Veteran provided sufficient good cause as to why he did not report for his VA examinations. 38 C.F.R. § 3.655. On remand, the Veteran should be provided another opportunity to attend his VA examinations, as the evidence suggests that he might have current disabilities that may be associated with his military service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 regarding any treatment for acquired psychiatric disorder, bilateral hearing loss, right shoulder, left shoulder, low back, right knee, left knee, right ankle, and left eye disabilities, to specifically include treatment records from a therapist as reported during the April 2021 Board hearing. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Associate with the claims file VA treatment records for any treatment that the Veteran might have received for his disabilities on appeal following his separation from his service in May 2007. 2. Schedule the Veteran for a VA examination regarding his claim of service connection for an acquired psychiatric disorder. a. The examiner should identify all psychiatric disorders that have existed since the date of the Veteran’s claim in March 2016 (even if now asymptomatic or resolved). The examiner should address the Veteran’s reports of sleep impairment. b. If the examiner finds that the Veteran’s meets the criteria for PTSD, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran’s stressor(s). c. Then, as to any such disability other than PTSD, the examiner should indicate whether it is as least as likely as not (50 percent or greater probability) that an acquired psychiatric disability had its onset in service, or is otherwise related to service, to include as due to his service in the Southwest Theater of Operations during the Persian Gulf War. The examiner should provide a rationale for the opinion. 3. Schedule the Veteran for an audiological examination. The audiologist should conduct audiometric and speech discrimination (Maryland CNC) testing of the right and left ear. Then, the audiologist should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss had its onset during service or is otherwise the result of his military service, to include as due to his in-service noise exposure. The VA audiologist should provide a rationale for the opinion. 4. Schedule the Veteran for a VA examination regarding his claim of service connection for a left eye disability. a. The examiner should identify all left eye disabilities that have existed since the date of the Veteran’s claim in March 2016 (even if now asymptomatic or resolved). b. The examiner should indicate whether it is as least as likely as not (50 percent or greater probability) that a left eye disability had its onset in service or is otherwise related to service, to include as due to an in-service left eye injury, as noted in a May 2005 STR. The examiner should address the May 2005 STR that reflects that the Veteran had an evaluation for his left eye because he had a foreign body in his left eye. The VA examiner should provide a rationale for the opinion. 5. Schedule the Veteran for a Gulf War examination, in connection with the claims of service connection for low back, right ankle, right shoulder, left shoulder, right knee, and left knee disabilities. The examiner is asked to address each of the following questions: a. Please identify by any low back, right ankle, right shoulder, left shoulder, right knee and left knee disability by (i) diagnosis or (ii) functional impairment. b. As to each disability identified, the examiner should opine as to whether it at least as likely as not (50 percent or greater probability) that such disability manifested in service or is otherwise related to service, to include as due to his service in Southwest Asia and as due to his in-service injuries as noted in his STRs. The examiner should address the Veteran’s STRs that includes a January 2007 health record that shows a diagnosis of deformity of the knee and genu valgum. Additionally, the examiner should address the STRs that show right shoulder strain and pain in October 2003, back pain in November 2003, and knee pain in August 2006. (Continued on the next page)   Alternatively, if any of the Veteran’s symptoms cannot be attributed to a known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of a chronic disability resulting from undiagnosed illness related to the Veteran’s Southwest Asia service, or is a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. If the Veteran’s symptoms are found to represent an objective indication of chronic disability resulting from either an undiagnosed illness or a chronic multisymptom illness, the examiner should also describe the extent to which the illness has manifested. The examiner must provide a rationale for all opinions. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.