Citation Nr: 21032141 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-38 948 DATE: May 26, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for headaches is remanded. FINDING OF FACT The probative evidence of record does not reflect that the Veteran's tinnitus was manifested in service, became compensable within a year of separation, or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 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 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). The record was held open for 30 days for the submission of additional evidence. A copy of the transcript is of record. In March 2021, the Veteran submitted additional private treatment records from Kaiser Permanente, where he testified that he received treatment and medication in 2015. Entitlement to service connection for tinnitus is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has tinnitus related to "high-level acoustic trauma" he experienced while serving aboard the USS Mattaponi. The Veteran's service treatment records (STRs) do not show complaints, treatment, or diagnosis of tinnitus. His post-service treatment records also do not reflect complaints, diagnoses, or treatment for tinnitus, until the May 2015 VA examination. The Veteran underwent a VA audiology examination in May 2015 to determine the possible etiology of his tinnitus. The Veteran reported ringing in the ears that "started a couple of months ago and stopped two weeks" later. He also had it "very intermittently in the last 15 years." The audiologist diagnosed tinnitus and concluded no nexus to service. She explained that the Veteran's inconsistent 15 years of tinnitus was over 35 years post his military service. Also, he had other contributing factors since the military, including civilian occupational noise exposure, high blood pressure, and neck issues. After consideration of the record, the Board finds that service connection for tinnitus must be denied. The finding of the VA examiner is the most probative evidence against the Veteran's claim. The examiner specifically noted a thorough in-person interview with the Veteran, an audiogram, and a review of the claims file. The VA examiner's opinion is supported by a thorough rationale, addressing the relevant evidence of record, including the STRs and the Veteran's statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's Board testimony, that his job in service was noisy, and the other lay statements of record, and the fact that he may sincerely believe that his current tinnitus is etiologically related to active service, including noise exposure. However, he also testified that he could not remember the onset of his tinnitus because it came and went. He is competent and credible to report on his having tinnitus intermittently over the years. Layno v. Brown, 6 Vet. App. at 470 (1994). Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a layperson to provide an opinion as to its existence or etiology. Jandreau v. Nicholas, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the evidence of record has not shown that the Veteran has the medical or audiological training, credentials, or other demonstrated expertise, to determine the etiology of his tinnitus. Further, his contentions were investigated by a credible medical examiner who found no relationship to service. The lay assertions, thus, carry a low probative weight. Although tinnitus is a condition capable of lay observation, the Veteran reported to the VA examiner that he had intermittent tinnitus in the last 15 years, circa 2000, over 30 years after service. Charles v. Principi, 16 Vet. App. 370 (2002). 1970 Furthermore, although tinnitus is a chronic disease subject to presumptive service connection, the record does not show that it began within one year of his separation from service. Therefore, a presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309 (a). Significantly, the Veteran reported onset of tinnitus in approximately 2000, many years after service. This also supports a finding that there was no continuity of symptoms of tinnitus since service. Lastly, there is no showing of continuity of symptomology since service in September 1970, nor does the Veteran so contend. Thus, a grant of service connection based on continuity of symptomatology is also not warranted. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (2013). In sum, there is no probative evidence of record indicating that the Veteran's tinnitus is related to his service. The competent medical evidence reflects that tinnitus, which started around 2000, is likely related to his post-service occupational noise exposure, high blood pressure, and cervical issues. As such, the preponderance of the evidence of record is against the claim, and service connection for tinnitus must be denied. Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has an acquired psychiatric disorder that was incurred in service. Specifically, he testified to having experienced racism aboard his ship. He witnessed a fellow sailor being knocked overboard in October 1969 or 1970 because the span wire hit him and cut him very badly. He soon became fearful and even went AWOL in 1970 for 14 days, which he did not remember. Post-service, he sought private mental health treatment and was diagnosed with posttraumatic stress disorder (PTSD). Alternatively, he advanced a secondary theory of service connection. He testified that his acquired psychiatric disorder might be due to his service-connected prostate cancer, heart, and/or erectile dysfunction (ED). The Veteran was afforded a VA examination in May 2015. The examiner diagnosed unspecified depressive disorder and found no nexus to service. Nonetheless, as the examination does not address the testimony of record and the secondary service connection theory, a supplemental examination is warranted. Additionally, the evidence of record shows that the Veteran reported seeing a private psychologist, Dr. Burch, in 2009/2010, "every week for six months [and] was prescribed anti-depressant and sleep medications." At his hearing, the Veteran verified his private mental health treatment with Dr. Burch for his acquired psychiatric disorder. These records are not of file. VA must attempt to obtain and associate them with the claims file. 2. Entitlement to service connection for a neck disability is remanded. The Veteran contends that he has a neck disorder that was incurred in service. The Veteran competently and credibly testified that during rough weather, his ship, USS Mattaponi, would rock "like 50 degrees to the left and right" and slipped and fell a few times, running span wire. After service, he was diagnosed with disc degeneration and degenerative spondylosis and had laminectomy surgery performed by Dr. J. S. in December 2004. Since then, he has had residuals, including pain in his neck, which limits his movement. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Based on the evidence presented above, including the credible hearing testimony, the Board finds that the low threshold of McLendon is met. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Thus, a remand is warranted for a VA examination to determine the etiology of the Veteran's cervical disability. 3. Entitlement to service connection for headaches is remanded. The Veteran was diagnosed with a headache disability. He contends that said disability was incurred in service and has continued since. During his Board hearing, he competently and credibly testified that he still has headaches and takes over-the-counter medication. Alternatively, he argues that his headache disability is aggravated by his neck disability. The Veteran was afforded a VA migraine examination in April 2015. The examiner found no nexus to service and explained that the vascular/tension "in-service headaches were acute and transitory, and he is no longer in such stressful environment similar to service." During the Veteran's Board testimony, his representative noted that while the April 2015 examiner concluded that the Veteran's headaches got better, they did not, for the Veteran still has headaches. As the Veteran has credibly testified that his headaches were continual and the examiner has yet to consider the Veteran's Board statement, among others, a remand is warranted for a supplemental examination. The Board notes that the Veteran's service treatment records (STRs) note his having had headaches at eight years old. However, as the Veteran was found fit for service upon entry in May 1969, the presumption of soundness is applicable. Biggins v. Derwinski, 1 Vet. App. 474 (1991). 4. Entitlement to service connection for vertigo is remanded. The Veteran contends that he has vertigo that was incurred in service and continued. The Veteran testified that his vertigo has continued since service, and he received treatment, therefor, at Kaiser Permanente. Alternatively, the record shows that there may be a secondary relationship between his vertigo and his cervical and headache disorders. During his VA PTSD examination in May 2015, the Veteran reported that his hip and neck problems limit his movement, and he gets dizzy. The Veteran was afforded a VA Sinusitis, Rhinitis, and Other Conditions of the Nose, Throat, Larynx, and Pharynx examination in April 2015. The examiner found a negative nexus to service and reasoned that his vertigo "is a physiologic response by the middle ear which contains equilibrium sensors. Thus, this is a natural response. These sensors send signals of a moving environment. This discordance causes the mind to send to the whole body a general alarm signal. This is an acute and transitory event." While the examiner explained the physiological reasoning behind why one gets vertigo, she did not adequately address the Veteran's contention of it having started in service and continued. As the Board herein finds the examination incomplete, a remand is warranted for a supplemental opinion addressing the Veteran's contention of continuity and his secondary claim. Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding treatment medical records, private and/or VA, including from Dr. Burch, and associate them with the claims file. 2. The requests should continue until it is determined that the records either do not exist or that further requests would be futile. If such a determination is made, a memorandum documented the determination should be affiliated with the claims file. 3. Take all appropriate steps to verify the Veteran's claimed stressors, including witnessing a fellow sailor being knocked overboard in October 1969 or 1970 because the span wire hit him and cut him very badly. 4. Then, provide the Veteran's claims file to a qualified clinician so that a supplemental opinion may be provided to determine the nature and etiology of his acquitted psychiatric disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated in April 1970, noting the Veteran indicated in a form for a psychiatric evaluation that he engaged in excessive drinking, had frequent headaches, blackouts, shortness of breath, suicidal ideation, and fingernail biting. b. STRs dated in April 1970, noting the findings of a neuropsychiatric examination noting that the Veteran had "much difficulty relating to his shipmates and officers, has frequent nightmares, and allegedly passed out on one occasion because of nervousness. He reported nightmares, seasickness, and difficulty relating to his peers. 'I just can't hack it because of difficulty getting along with shipmates." c. Post-service treatment notes dated in October 2010 wherein the Veteran reported a 4-6-month period of dysphoric mood, sleep disorder, and depressive symptoms related to multiple stressors related to heart attack, gambling losses, and increased pain. d. March 2021 Board testimony. The examiner should provide opinions as to the following: a. Identify the Veteran's psychiatric disorder(s) present during the appeal period. b. If PTSD is diagnosed, identify the specific stressor(s) and comment upon the link between the current symptomatology and the Veterans stressor(s). c. Determine whether it is as likely as not (50 percent probability or greater) that any identified acquired psychiatric disability had its onset during active service or is related to any incident of service. d. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's psychiatric disorder was proximately due to or the result of service-connected prostate cancer, heart, and/or ED. e. Whether it is at least as likely as not that the Veteran's acquired psychiatric disorder has been aggravated (increased in severity beyond its natural progression) by his service-connected prostate cancer, heart, and/or ED. The examiner is reminded that there are two prongs of a secondary service connection claim: causation and aggravation. 38 C.F.R. § 3.310. To be adequate, a medical opinion must provide explanations for both prongs. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 5. Provide the Veteran's claims file to a qualified clinician so that an etiology opinion may be provided to determine the nature and etiology of his cervical disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. Treatment notes dated in February 2008 noting that the Veteran was medically disabled from Men's Warehouse due to neck and back injury. b. Treatment notes dated in March 2008 noting neck pain and headaches. c. October 2010 treatment record noting "No history of head trauma. But neck injury while he fell and twisted his neck working as a salesclerk for Men's Warehouse in 2003." d. October 2010 treatment record indicating the Veteran's report that cervical spine fusion surgery resulted in pain, migraine headaches, depressive disorder in 2005. Depressive periods lasted for three months which he related to pain. e. March 2021 Board testimony. The examiner must determine whether it is as likely as not (50 percent probability or greater) that cervical disorder had its onset during active service, related to any incident of service, or if arthritis is diagnosed, whether it manifested within one year of service. The examiner is reminded that there are two prongs of a secondary service connection claim: causation and aggravation. 38 C.F.R. § 3.310. To be adequate, a medical opinion must provide explanations for both prongs. Atencio, 30 Vet. App. 74 (2018). 6. Provide the Veteran's claims file to a qualified clinician so that a supplemental opinion may be provided to determine the nature and etiology of his headache disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated in January 1970 noting the Veteran's complaint of migraine headaches. b. STRs dated in March 1970 notes complaint of "chronic headaches." c. STRs dated in April 1970, noting the findings of a neuropsychiatric examination, including that the Veteran had been evaluated for episodes of motion sickness and headaches. d. March 2021 Board testimony. The examiner must determine: a. Whether it is as likely as not (50 percent probability or greater) that headache disorder had its onset during active service or is related to any incident of service. b. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's headache disability was proximately due to or the result of a cervical disorder. c. Whether it is at least as likely as not that the Veteran's headache disability has been aggravated (increased in severity beyond its natural progression) by his cervical disorder. The examiner is reminded that to be adequate, a medical opinion must explain both causation and aggravation prongs. Atencio, 30 Vet. App. 74 (2018). The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 7. Provide the Veteran's claims file to a qualified clinician so that a supplemental opinion may be provided to determine the nature and etiology of his headache disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. STRs dated in January 1970 note the Veteran's in-service sea sickness. b. STRs dated in April 1970, noting the findings of a neuropsychiatric examination, including that the Veteran had been evaluated for episodes of motion sickness and headaches. c. February 2008 complaint of neck pain and dizziness since Sunday. The clinician identified the problem as "dizziness." d. Private treatment records dated in November 2015 noting dizziness walking back to the room after last bloody bowel movement. e. March 2021 Board testimony. The examiner must determine: a. Whether it is as likely as not (50 percent probability or greater) that headache disorder had its onset during active service or is related to any incident of service. b. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's vertigo was proximately due to or the result of a headache disorder and/or cervical disorder. c. Whether it is at least as likely as not that the Veteran's vertigo has been aggravated (increased in severity beyond its natural progression) by his headache and/or cervical disorder. The examiner is reminded that to be adequate, a medical opinion must explain both causation and aggravation prongs. Atencio, 30 Vet. App. 74 (2018). The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 8. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.