Citation Nr: 21026680 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-35 046 DATE: May 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for generalized anxiety disorder is remanded. FINDING OF FACT The Veteran's tinnitus manifested in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112; 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 September 1991 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for tinnitus Generally, to establish service connection a Veteran 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements for chronic diseases under 38 C.F.R. § 3.309(a) is available if there is continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is a qualifying chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.309(a). The Veteran is competent to report a current diagnosis of tinnitus, as it is uniquely lay-observable. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds his reports credible and probative. The Veteran reported having tinnitus during his February 2014 VA examination and during multiple VA medical appointments. The Veteran is also competent to report that he began experiencing tinnitus in service after noise exposure while working as a diesel mechanic for over 20 years on active duty. His reports are similarly credible and probative, as they have been internally consistent and are consistent with the circumstances of his service. The Veteran's DD-214 documents his primary specialties as mechanical maintenance-man, propulsion technician, and refrigeration and air conditioning systems technician. While the March 2014 VA examiner provided a negative nexus opinion, it is inadequate and therefore not probative. The opinion does not consider the Veteran's consistent reports that he began experiencing ringing in his years while on active duty, relies on an absence of a tinnitus diagnosis in his service treatment records, and does not address the significance of his noise exposure as a diesel mechanic while on active duty. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Based on the above, the Board finds that the preponderance of the evidence weighs in favor of finding that the Veteran's tinnitus began during his active service and that continuity of symptomatology has existed since service. REASONS FOR REMAND Entitlement to service connection for generalized anxiety disorder is remanded. The Veteran contends his generalized anxiety disorder (GAD) is due to his active duty. VA provided the Veteran an examination in February 2014 to determine the nature and etiology of his GAD. The examiner opined that the Veteran's GAD was less likely than not incurred in or caused by his active duty service. Unfortunately, the examination is inadequate to adjudicate the Veteran's claim. The February 2014 examiner provided a negative nexus opinion, in part, because there was no evidence of a persistent anxiety disorder and the Veteran is not seeking treatment. However, in a June 4, 2014 treatment note, the Veteran reported he is seeking treatment by an off-base provider and reported an increase in his anxiety and anger. Therefore, this opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale, based upon the entire record, in support of its conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). Further, the examiner relied on the absence of anxiety symptoms in the Veteran's medical records when providing a negative medical opinion. However, the Veteran has consistently reported that he began to experience anxiety symptoms while on active duty and has experienced anxiety since. In other words, the examiner appears to have impermissibly dismissed the Veteran's reports of anxiety solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Moreover, VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). As noted above, in a June 2014 treatment note the Veteran reported treatment for his anxiety from an off-base provider. However, non-VA psychology treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. VA must attempt to obtain the anxiety treatment records as they are relevant to the Veteran's claim. Id. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any psychology/psychiatric treatment provider and for any other medical care provider or medical facility which may have records related to the Veteran's generalized anxiety disorder. Make two requests for the authorized records from any other medical care provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Forward the claims file to an appropriate clinician to determine whether the generalized anxiety disorder is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the generalized anxiety disorder began in or is otherwise caused by the Veteran's active service. The examiner should specifically address the Veteran's lay statements and testimony regarding ongoing anxiety symptoms since service. The examiner may not dismiss the Veteran's lay statements solely because they are not documented in contemporaneous medical records. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.