Citation Nr: 21039926 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-02 452 DATE: July 1, 2021 ORDER The appeal of service connection for a bilateral eye disorder is withdrawn. Service connection for a chronic respiratory disorder is denied. REMANDED Service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The Veteran had active duty from July 1975 to August 1975. 2. In December 2020, prior to promulgation of a decision on the appeal, the Veteran indicated his intent to withdraw the claim of service connection for a bilateral eye disorder. 3. A chronic respiratory disorder, diagnosed as bronchitis, was not incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for a bilateral eye disorder have been met. 38 U.S.C. §§ 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2020). 2. A chronic respiratory disorder was incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in December 2019. A copy of the transcript has been associated with the claims file. Withdrawal of a Bilateral Eye Disorder In April 2020, the Board denied the claim of service connection for a bilateral eye disorder. The Veteran appealed to the Veterans Claims Court (Court). In December 2020, the Veteran expressed intent to withdraw the claim of service connection for a bilateral eye disorder. No further correspondence was received from the Veteran on this issue. Based on the above, he expressed his intent to withdraw the claim in December 2020. As such, the claim is withdrawn, and no further adjudicative action will be taken. Service Connection for a Chronic Respiratory Disorder In April 2020, the Board denied the claim. The Veteran appealed to the Court. In December 2020, the Court Clerk vacated the Board's decision and remanded the claim for additional development. These actions stem the basis for the current appeal. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to a current disorder, the Veteran was diagnosed with acute chronic bronchitis in 2015. Therefore, the first element of service connection is met. As to an in-service incurrence, the Veteran contends that he developed respiratory problems as a result of being exposed to tear gas during basic training. While STRs showed that he was treated for an upper respiratory infection in July 1975, the evidence does not show that he developed a chronic respiratory disorder during his brief period of service. Further, at the hearing, the Veteran testified that he developed a respiratory disorder due to being outside in the rain during training. He stated that he was treated for pneumonia in service as a result. However, STRs are absent of any complaints, diagnoses, or treatment related to pneumonia or any other chronic respiratory disorder. Specifically, he sought treatment for neck pain but did not report a chronic respiratory disorder or symptoms of a chronic respiratory disorder. Therefore, the second element of service connection is not met. The Board acknowledges that the Veteran submitted a research study showing a marked increase in complaints of respiratory symptoms by those who were frequently exposed to tear gas were more likely to complain of respiratory symptoms. However, despite this finding, the medical evidence weighs against a finding that a chronic respiratory disorder was incurred in service. Specifically, the Veteran was only on active duty for a month. Therefore, it is not likely that he was "frequently exposed" to tear gas like the participants in the cited research study. Further, he separated from service in 1975 and was not diagnosed with a chronic respiratory disorder until 2015, 40 years later. In addition, a "marked increase in complaints" does not rise to the standard of "at least as likely as not" that is needed to show a nexus between a current disorder and an in-service incurrence. Therefore, the medical evidence weighs against a finding that a chronic respiratory disorder was incurred in service. The Board has considered the Veteran's lay statements and testimony that a chronic respiratory disorder began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer an etiology of this disorder. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In April 2020, the Board denied the claim. The Veteran appealed to the Court. In December 2020, the Court Clerk vacated the Board's decision and remanded the claim for additional development. The Veteran contends that an acquired psychiatric disorder was incurred in service and/or is due to service connected tinnitus. The record reflects that he served on active duty for one month in 1975. He was diagnosed with adjustment and anxiety disorders in 2015. Further, in a January 2017 VA psychiatric examination, he endorsed sleep difficulties due to tinnitus and was diagnosed with insomnia. Further, the Veteran contends that he developed anxiety as a result of being exposed to tear gas during basic training. Service treatment records showed that he was treated for situational stress and homesickness. However, an opinion has not been rendered as to whether an acquired psychiatric disorder was incurred in service and/or whether it was caused or aggravated by service connected tinnitus. In addition, in a January 2017 VA psychiatric examination, the examiner diagnosed insomnia and wrote that it was caused or aggravated by service connected tinnitus. However, it is unclear from the medical record and examination whether the Veteran has a formal DSM-5 diagnosis of an insomnia disorder or experiences a sleep disorder. Therefore, on remand, the clinician should clarify whether the Veteran has a clinical diagnosis of insomnia under the DSM-5 criteria and whether it was caused or aggravated by service connected tinnitus. The matter is REMANDED for the following action: Direct the claims file to a clinician to provide opinions as to the following: whether an acquired psychiatric disorder was at least as likely as not (50 percent or greater probability) incurred in service and/or was caused or aggravated by service connected tinnitus. whether the Veteran has a current diagnosis of an insomnia disorder under the criteria of DSM-5, and if so, whether an insomnia disorder was incurred in service and/or caused or aggravated by service connected tinnitus. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.