Citation Nr: 21029469 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 952 DATE: May 13, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and schizoid personality disorder, is remanded. Service connection for brain damage (claimed as memory loss) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is related to his in-service excessive noise exposure to jet engines. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1978 until his honorable discharge in December 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision by the Louisville, Kentucky, Regional Office of the United States Department of Veterans Affairs (VA). The Veteran timely appealed and did not chose to have a Board hearing. In an October 2018 decision, the Board remanded the above-cited claims for service connection to the VA Regional Office for further development. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis As part of the Board's October 2018 remand order, it directed the RO to obtain a VA examination and medical opinion addressing the Veteran's claim for service connection for tinnitus, which did not occur. As the Board is granting service connection for tinnitus in full, there is no prejudice to the Veteran by the Board not remanding to obtain an examination or medical opinion. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). First element: A current disability For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). The Veteran has stated that since service he has experienced ringing in his ears. He has described the severity of his tinnitus as "very painful" such that is "interferes with concentration." As of September 2016, the Veteran's VA medical records list "tinnitus" as one of his illnesses under the "problems list." The Board finds the evidence is sufficient to satisfy the first element. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran asserts that his two years aboard an aircraft carrier's flight deck exposed him to excessive noise from jet engines. The Veteran's military records indicate he served aboard an aircraft carrier for roughly two years during his active service. The Board recognizes that much of the Veteran's military personnel records associated with his claim file are illegible. Affording the Veteran any benefit of the doubt, the Board finds his described in-service exposure to excessive noise from jet engines is sufficient to satisfy the second element of an in-service event. Curry v. Brown, 7 Vet. App. 59, 67 (1994) (when a veteran's service records are missing Board's obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule is heightened). Third element: A causal link The Board finds the evidence of record is sufficient to link his tinnitus with his military service. At the time of his August 1978 entrance examination and his December 1981 separation examination, the clinicians did not document hearing issues. The Veteran's personal medical report that would normally accompany his December 1981 separation examination is either not of record or is part of the many military documents that are illegible. Regardless, the Veteran has only reported being exposed to excessive noise in the form of jet engines since his military service. He has consistently asserted serving aboard the U.S.S. Ranger, which his military records documented, and being exposed to excessive jet-engine noise that he believes led to his tinnitus. Significantly, there is an absence of any evidence to indicate the Veteran's tinnitus occurred due to some other cause. Providing the Veteran with the benefit of the doubt, the Board finds his tinnitus, in the absence of evidence to the contrary, is at least as likely as not causally linked to his military service. See id. Therefore, the third element is satisfied. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. As part of the Board's October 2018 remand order, it directed the VA Regional Office to obtain a VA examination and medical opinion addressing the Veteran's claim for service connection for bilateral hearing loss. The VA Regional Office did not make any attempts to obtain an examination or medical opinion. Therefore, remand is required. 2. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and schizoid personality disorder, is remanded. As part of the Board's October 2018 remand order, it told the VA Regional Office to "arrange for any additional required development, such as a psychiatric examination if records justify such." The VA Regional Office did obtain a psychiatric evaluation in August 2019, but only for non-PTSD mental disorders. The Veteran has clearly indicated he believes he has PTSD due to his exposure to contaminated water at Camp Lejeune, and the VA Regional Office has already acknowledged such exposure. Furthermore, the Veteran's medical records indicate a diagnosis of PTSD. Yet, no VA medical examination for PTSD has been completed. Thus, remand is necessary for such an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (analyzing when VA's duty to assist requires a medical examination). Second, the August 2019 VA examiner diagnosed the Veteran with schizoid personality disorder and stated, "Veteran has had only brief interaction with mental health, and records show a diagnosis of [obsessive compulsive disorder], PTSD, and depression. However, whenever possible, a unifying diagnosis should explain all if not most symptoms, and in this case, taken in context with his socio-occupational history, schizoid personality disorder is the most accurate diagnosis." It is unclear to the Board whether the Veteran's other diagnosed disabilities are encompassed by his schizoid personality disorder, such that they stem from his personality disorder (i.e., are symptoms of his personality disorder), or whether they are superimposed on top of his schizoid personality disorder, such that they are separate disabilities. This is important because VA cannot grant service connection for a personality disorder as it is not a disease or injury. Morris v. Shinseki, 678 F.3d 1346, 1356 (Fed. Cir. 2012); see also 38 C.F.R. §§ 3.303(c); 3.310 (a), 4.127. But VA may grant service connection when another mental disorder is "superimposed" upon a personality disorder. 38 C.F.R. § 4.127. "Superimposed" is not defined in VA regulations, but a common definition is that one thing is placed over another, typically so that both are still evident. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when impossible to differentiate the symptoms of a service-connected versus a nonservice-connected disability, such signs and symptoms must be attributed to the service-connected condition). In addition, the VA examiner opined that "[w]ithout more evidence, it would be merely speculative to correlate Veteran's experiences during the military to his current diagnosis; there is no evidence in the personnel record, no buddy statement, and no record of investigation into the claims of his stressor events." The examiner overlooked that the Veteran's claimed in-service stressor was based on his exposure to contaminated water while stationed at Camp Lejeune, and the VA Regional Office had acknowledged such exposure. Thus, remand is necessary for a sufficient medial opinion in addition to any further development. 3. Service connection for brain damage (claimed as memory loss) is remanded. As one of the Veteran's claimed symptoms associated with his claim for service connection for brain damage is memory loss, which may also be reasonably associated with his claim for service connection for an acquired psychiatric disability, the Board finds these claims are inextricably intertwined. Thus, this claim should also be remanded until completion of all other development. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Attempt to obtain any outstanding service treatment records not otherwise of record, to include the Veteran's report of medical history associated with his December 1981 separation examination. Document all requests for information as well as all responses in the claims file. If unavailable, make a formal finding of unavailability and associate such with the record. 3. After any additional records are associated with the claims file, a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify whether the Veteran currently has hearing loss in either ear. (b.) If so, whether it is at least as likely as not (50 percent probability or more) that the Veteran's hearing loss had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to excessive noise from jet engines. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his hearing loss, if any, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a hearing loss in service or the assertion that an in-service event, injury, or illness led to hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's psychiatric disabilities, to include PTSD and schizoid personality disorder. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Does the Veteran have a diagnosis of PTSD in accordance with standards of the DSM-5? (b.) Does the Veteran have any other psychiatric diagnoses, other than PTSD, in accordance with the standards of the DSM-5? (c.) If the Veteran does have a diagnosis of PTSD in accordance with the DSM-5 standards, whether it is at least as likely as not (50 percent probability or more) that the Veteran's PTSD had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to contaminated water at Camp Lejeune. (d.) If the Veteran has any other psychiatric diagnosis in accordance with the DSM-5 standards, whether it is at least as likely as not (50 percent probability or more) that each identified psychiatric condition had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to contaminated water at Camp Lejeune. (e.) Whether any identified personality disorder was subject to a superimposed acquired psychiatric disorder resulting in an additional disability. If so, the examiner should identify any additional disability that the Veteran suffered as a result of an acquired psychiatric disability that was superimposed on the personality disorder. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) A February 21, 2018, correspondence from VA, stating that the Veteran has been in the care of the Veterans Health Administration for Mental Health since April 2017. He has been diagnosed with obsessive compulsive disorder, chronic posttraumatic stress disorder, and major depressive disorder (unspecified). (b.) Social Security Administration records documenting a clinical interview by a licensed psychologist, K.R., in November 2012 who diagnosed the Veteran with "psychotic disorder (not otherwise specified)"; and a medical evaluation by Dr. R.C. in December 2012 who diagnosed the Veteran with "schizophrenia, paranoia, and other psychotic disorders" as "primary" and "severe." The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his symptoms and experiences, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.