Citation Nr: 21030316 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-02 310 DATE: May 18, 2021 ORDER Entitlement to service connection for rheumatoid arthritis is dismissed. Entitlement to service connection for hypertension (HTN) is dismissed. Entitlement to service connection for hypothyroidism is dismissed. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for left leg radiculopathy is remanded. Entitlement to service connection for left shoulder bursitis is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. At January 2021 Board videoconference, prior to promulgation of a decision on the appeal, the Veteran withdrew his claims of service connection for rheumatoid arthritis, HTN, and hypothyroidism. 2. The Veteran's tinnitus was first manifested on active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for rheumatoid arthritis by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of entitlement to service connection for hypertension (HTN) by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of entitlement to service connection for hypothyroidism by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Air Force from May 1973 to November 1974 and, as a member of the Reserves, from February 1991 to July 1991. This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran had a Board hearing before a Veterans Law Judge (VLJ). A partial transcript of that hearing is of record. In February 2020, the Veteran was notified that the VA was not able to record and produce a full transcript of the June 2019 Board hearing. Later that month, the Veteran elected to participate in a new Board hearing. In January 2021, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran filed separate claims seeking service connection for posttraumatic stress disorder (PTSD). A claim for an acquired psychiatric disorder includes any disorder that is reasonably encompassed by the claimant's symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, these claims are recharacterized as a claim of entitlement to service connection for an acquired psychiatric disorder, however diagnosed. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 19.55, 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. §§ 19.55, 20.205. The appellant withdrew his appeal with regards to his claim for service connection for rheumatoid arthritis, HTN, and hypothyroidism at the January 2021 Board hearing, after being notified of the consequences of such action. There remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. 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(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Tinnitus, as an organic disease of the nervous system, is listed; the presumptive period is one year following separation from service. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that his tinnitus is related to his military service. The Veteran competently and credibly reports he experiences tinnitus or ringing in both ears. While no testing can verify this complaint, VA doctors have accepted the subjective reports and diagnosed the condition and a current disability is established. The Veteran reported that his current disability started in service after exposure to loud noises from working in aviation as a loadmaster and crew chief. In January 2021, he testified that his tinnitus started in the late 1980s and early 1990s. He stated that when he first noticed it, he ignored it. A January 2014 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The Veteran indicated that his tinnitus was constant and started 4 to 5 years prior. He did not recall a specific incident of onset. The examiner's rationale was that the pre-induction hearing test result revealed normal pure tone thresholds with no shift in hearing seen. She noted that May 1976 through February 2005 reserve hearing test revelated normal pure tone with no shift in hearing seen. She indicated that because there was no evidence of hearing loss or shift in hearing during military service, tinnitus was not related to hearing loss. While the Veteran was initially unsure of the onset of his tinnitus symptoms during the January 2014 VA examination, he has since clarified his reports and consistently endorsed tinnitus symptoms in and since service. The Board finds that the Veteran's competent and credible reports of onset of tinnitus in service, and recurrence in the years since service, outweigh the negative medical opinion. Once a chronic disease is diagnosed, subsequent manifestations of the disease are presumed related. As tinnitus first manifested in service and has done so since, service connection for tinnitus is warranted. REASONS FOR REMAND Back/Left Leg/ Left Knee/ Left Shoulder The Veteran has not been afforded a VA examination with respect to his claimed conditions. In January 2021, the Veteran testified that he fell off the back of the ramp of an airplane and injured his back, left leg, left knee, and left shoulder. He stated that this happened sometime in the early 1990s. He indicated that he did not seek medical treatment because he was in the middle of a mission. He indicated that he self-medicated to treat his conditions. He noted that he did not have a line of duty determination because he wanted to stay on flying status. He testified that he still had problems with his back, left leg, left knee, and left shoulder. There is no medical opinion as to whether the Veteran's claimed conditions are related to his military service. Where there is evidence of a current disability or persistent or current symptoms of a disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38U.S.C. §5103A(d); 38C.F.R. §3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) Bilateral Hearing Loss Audiologic testing conducted as part of a January 2014 VA examination showed some hearing loss but did not show a hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. Noise exposure in service has been identified and the Veteran testified that his hearing has worsened. The claim is remanded for a new examination. Acquired Psychiatric Disorder A May 2013 letter noted that the Veteran reported that he flew to Afghanistan and brought back the bodies of soldiers who were killed in combat. The Veteran reported that he would be alone in the back of the plane with body bags and would read the paperwork describing how the soldiers died. The examiner noted that the Veteran presented the classic signs and symptoms of PTSD. JAH, a licensed clinical social worker, opined that the Veteran's diagnoased PTSD was a direct result of his service in the military during the war in Afghanistan. He reported symptoms of re-experiencing trauma, avoiding stimuli associated with the trauma, numbing of responsiveness, and increased arousal. JAH noted that his symptoms had caused clinically significant distress and interfered with his social and vocational functioning. The letter was signed by JAH a licensed social worker and Dr. SRE, a psychologist. In February 2014, the Veteran was afforded a VA PTSD examination. The examiner indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5. The examiner checked the box that that the Veteran did have a mental disorder that conformed with DSM-5 criteria. However, she noted later in her conclusion that the Veteran did not have a mental disorder. The examiner remarked that after interviewing the Veteran and reviewing the medical records, it was her opinion that the Veteran did not meet DSM-5 criteria for PTSD. The Veteran had some symptoms related to PTSD; however, he denied exposure to traumatic and life-threatening events while deployed. She noted that the Veteran did not meet criteria for major depressive disorder (MDD). The Veteran reported that his symptoms developed approximately 5 years ago and therefore were unlikely caused by military service. The Board first notes that the medical evidence of record is conflicting as to whether the Veteran has a diagnosis of a psychiatric disorder. The May 2013 opinion indicated that the Veteran had a diagnosis of PTSD. However, February 2014 VA opinion indicated that the Veteran did not have any diagnosis of a psychiatric disorder, and application of the required criteria was clearer. Further, the Veteran testified that he has sought treatment with the VA for his psychiatric disorder. A remand for VA examination and medical opinion is warranted. Records In January 2021, the Veteran testified that he received treatment from the James J. Howard VA Outpatient Clinic for his psychiatric disorder. The Veteran's file only has VA medical records pertaining to his January and February 2014 VA examinations for service connection. In January 2021, the Veteran testified that he sought treatment for his orthopedic conditions from private providers. The Veteran requested 60 days to submit evidence from his private providers. To date, the Veteran has not submitted any private medical records regarding his claimed conditions on appeal. The Veteran is reminded that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On remand, an attempt to obtain both outstanding VA treatment records and any relevant private treatment records should be made. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder complete updated VA treatment records, specifically those treatment records from the James J. Howard VA Outpatient Clinic. 2. Contact the Veteran and request properly executed, releases for any private care providers who have treated him for any claimed conditions since service. 3. Schedule the Veteran for a VA mental disorders/initial PTSD examination. The claims file must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed acquired psychiatric disorders. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed psychiatric disorder was caused or aggravated by service. 4. Schedule the Veteran for a VA spine examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran's low back condition was caused or aggravated by service. The examiner must address whether the Veteran has a diagnosis of left lower radiculopathy, or any other neurological manifestations of a low back disability. 5. Schedule the Veteran for a VA joints examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not any left knee or left shoulder condition was caused or aggravated by service. 6. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.