Citation Nr: 21040109 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-02 663 DATE: July 2, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, anxiety, and claustrophobia is remanded. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus manifested during or is otherwise related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to May 2008 and from August 2008 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Appeal (VA) Regional Office (RO). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, such as tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for tinnitus After review of the record, the criteria for service connection for tinnitus are met. A competent diagnosis of tinnitus was confirmed during a April 2014 VA examination. VA treatment records demonstrate that the Veteran complained of ringing in his ears during a December 2013 Vocational Assessment. The Veteran contends that tinnitus began in 2009 while he was deployed to Iraq. In a May 2013 statement, the Veteran described his exposure to loud noises from mortars landing in close proximity during combat. The Veteran's military occupational specialty was ammunition specialist. Noise exposure is conceded. The April 2014 examiner found that he was unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. He concluded that the etiology of reported subjective tinnitus is unknown in the presence of normal hearing. The examiner offered no further rationale or explanation of the significance of normal hearing in the context of tinnitus and in-service noise exposure. In a June 2014 addendum, the examiner again determined that the etiology of reported subjective tinnitus is unknown in the presence of normal hearing. He noted, however, that there was no mention of tinnitus in the claims file and ear trouble was denied on the June 2011 Report of Medical History. The April 2014 and June 2014 medical opinions that the etiology of the Veteran's tinnitus is unknown are given little to no probative value as they are not supported by clear rationale. The Veteran is competent to describe symptoms observable to his senses such as ringing in his ears. See Jandreau, 492 F.3d at 1377. The Board notes that the Veteran stated that symptoms began during service and have continued since service. The competent and probative evidence is at least in equipoise as to whether tinnitus was noted in service with post-service continuity of the same symptomatology. As a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be based on continuity of symptomatology. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Any doubt on the material issue of a relationship between the present disability and the post-service symptomatology is resolved in the Veteran's favor, and the claim of service connection for tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection, absent intercurrent causes, or service connection via continuity of symptomatology). REASONS FOR REMAND 1. The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, anxiety, and claustrophobia, is remanded. The Board cannot make a fully informed decision in the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, anxiety, and claustrophobia. The Board notes that the Veteran filed claims of service connection for PTSD, anxiety, and claustrophobia. In light of the Veteran's reported symptoms and diagnoses, the Board has recharacterized the claims of service connection for PTSD, anxiety, and claustrophobia as a claim of service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). A review of the claims file reflects that the Veteran's service treatment records may be incomplete. There is no entrance examination or periodic examinations associated with the claims file and while the Veteran served on active duty from August 2008 to August 2011, his treatment records do not begin until 2011. The Agency of Original Jurisdiction (AOJ) should obtain the Veteran's complete service treatment records, to include his entrance examination. remand is required for VA to obtain the Veteran's complete service treatment records. The AOJ should make a formal finding of unavailability if the Veteran's records cannot be located. The Veteran was afforded a VA examination in April 2014. The examiner determined that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD but diagnosed unspecified bipolar disorder and unspecified cannabis-related disorder. During the examination, the Veteran reported that he may have participated in counseling as a child, but could not recall with certainty, and noted he attended a middle school for "troubled kids." In June 2014, the examiner was asked to provide a medical opinion for aggravation of a condition that existed prior to service. The opinion request asserted that the Veteran claimed his mental condition was aggravated beyond its natural progression by a fellow soldier's suicide. The examiner opined that the claimed condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that the Veteran made no mention of his friend's suicide during the evaluation and made no mention of the event to Social Work. Further, the examiner noted that based on the Veteran's prior statements concerning possible counseling during childhood and attending a school for troubled children, the Veteran struggled with mental health concerns prior to enlisting in the military. The April 2014 examination and June 2014 opinion are inadequate for adjudication purposes. The examiner did not have an opportunity to review relevant service treatment records and did not consider the Veteran's lay statements, other relevant medical evidence of record, or the AOJ's formal finding corroborating the Veteran's identified PTSD stressor of witnessing a fellow soldier's suicide in September 2010. As such, a new examination is warranted upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records, including entrance examinations. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain the records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 2. After completion of directive #1, schedule the Veteran for an examination with the appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner should review the claims file and address the following: (a.) Identify all diagnosed acquired psychiatric disorders that are currently present (or present at any time since September 10, 2011), to include PTSD, bipolar disorder, anxiety, and claustrophobia. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (50 percent or greater probability) related to a verified in-service stressor. For each other diagnosed acquired psychiatric disorder, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the current acquired psychiatric disorder manifested during or is otherwise related to the Veteran's period of active service. (b.) A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.