Citation Nr: 21040416 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-34 971 DATE: July 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, however diagnosed and including posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a dental injury is remanded. FINDING OF FACT It is at least as likely as not that the Veteran's tinnitus is causally related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 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 January 1965 to December 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal of February 2017 and February 2018 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a hearing in October 2020. Initially, the Board notes the Veteran filed a claim seeking service connection for PTSD. VA treatment records associated with the claims file suggest additional mental health diagnoses, including depression. Accordingly, the claim has been recharacterized to as one seeking service connection for any acquired psychiatric disorder, however diagnosed and including PTSD, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also notes, the Veteran did not file a substantive appeal (VA Form 9) as to his claim of entitlement to service connection for a dental condition. However, as the Board accepted testimony as to this claim in October 2020, waiver of the substantive appeal requirement is warranted. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding the filing of a substantive appeal is not jurisdictional and may be waived by VA). Entitlement to service connection for tinnitus 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). Establishing service connection generally requires (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 evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a disease explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide a method of establishing service connection through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a disease of the nervous system, tinnitus is a chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Moreover, tinnitus is a disease which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). The Veteran seeks service connection for tinnitus. In service noise exposure is conceded based on his military occupational specialty (MOS) as a combat engineer. In December 2016, he submitted a statement in support of this claim. He recalled that he initially noticed tinnitus during his active service after he was exposed to noise from aircraft and weapons. His tinnitus continued from that time. A January 2017 VA examiner observed the Veteran did not report recurrent tinnitus. The examiner did not provide an etiology opinion. During his October 2020 testimony, the Veteran could not recall when he initially experienced tinnitus. Here, the Veteran's December 2016 statement fully explains his in-service noise exposure, the onset of tinnitus, and the continuing nature of the condition. This statement is clear and complete. It is entitled to great weight. The January 2017 VA examination report and the October 2020 testimony do not fully address the issue at hand. They are not complete accounts of the Veteran's experience of tinnitus. They are entitled to less weight. Accordingly, after resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that the evidence both for and against the claim is at least in a state of equipoise. Thus, entitlement to service connection for tinnitus is warranted. See Gilbert, supra; see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). REASONS FOR REMAND The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 1. Entitlement to service connection for an acquired psychiatric disorder, however diagnosed and including posttraumatic stress disorder (PTSD), is remanded. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). If a claimed stressor is related to the fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant's service, the claimant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means the claimant experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The Veteran's military personnel records confirm his assignment to a Special Forces unit in the Panama Canal Zone. In October 2017, he submitted a statement in support of his claim for service connection for PTSD. He recalled, as he was breaching a door during a "snatch and grab" mission, an enemy soldier tried to shoot him. The soldier's gun did not properly fire, but the click of the gun was audible. The Veteran stated "[w]e had to take him out along with others." He also recalled receiving an assignment to shoot a particular woman. He and a spotter watched and waited for her. However, when she arrived at their location, she was accompanied by a little girl. The Veteran was unable to "take the shot" because he did not want to traumatize the little girl. In December 2019, the Veteran submitted an additional statement recounting his assignment to train members of the Bolivian Army. During this assignment he assisted in setting up a "booby trap" near an encampment of guerilla fighters. Subsequently, many young insurgents were killed in the "booby trap." VA has not provided the Veteran an examination regarding his service connection claim for an acquired psychiatric disorder, including PTSD. An examination is necessary to ensure compliance with VA's duty to assist because there is evidence that suggests the Veteran may have an acquired psychiatric disorder as a result of his active service. 38 U.S.C. § 5103A(d); McLendon, supra. 2. Entitlement to service connection for right ear hearing loss is remanded. Normal hearing at separation is not fatal to a claim of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran seeks service connection for right ear hearing loss. In-service exposure to hazardous noise has been conceded based on the Veteran's military occupational specialty (MOS) of combat engineer. In December 2016, the Veteran submitted a statement recounting his perception of hearing loss during his active service after noise exposure from aircraft and weapons. A January 2017 VA hearing loss examination was provided to evaluate the claim. The Veteran's right ear hearing loss was confirmed during the examination. However, the examiner opined that this condition was less likely than not caused by the in-service noise exposure. In support, he observed in-service audiometric testing did not demonstrate significant threshold shifts and there were no in-service reports of any right ear hearing loss condition. This rationale is insufficient to support the negative etiology opinion. See Ledford, supra. An additional VA hearing loss etiology opinion must be obtained. See Barr, supra. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran seeks service connection for a right knee disability. VA medical records confirm a diagnosis of right knee arthritis. Military personnel records show the Veteran served with the Special Forces and earned the Parachutist Badge. In a December 2016 statement and in October 2016 testimony, the Veteran described making parachutes jumps during his active service. The landings jarred his knees. He recalled jumping at night and landing in rutted fields. He remembered that he felt pain in his knees when he landed in the holes. He did not report knee pain or seek treatment because doing so was not the custom in his Special Forces unit. As a layperson, the Veteran is competent to report his experience of observable symptomatology, including knee pain. However, he does not have the requisite skill or training to address a complex medical question such as the etiology of arthritis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In support of this claim, the Veteran submitted an April 2016 letter from a private orthopedist, Dr J. J. and a physician's assistant, J. W. These medical professionals noted they had treated the Veteran in the past and he was currently being seen for right knee patellofemoral osteoarthritis. They noted his military service included parachute jumping and rappelling and observed these activities could aggravate or worsen his osteoarthritis. This medical opinion does not describe how the Veteran's military service may have caused his current right knee condition. As the letter does not address the issue at hand, it is inadequate to evaluate the claim. See Stefl, supra. A January 2017 VA knee conditions examination was provided to evaluate the claim. The examiner diagnosed right knee osteoarthritis. He observed no right knee conditions were indicated in the Veteran's June 1968 separation examination. He noted medical literature (applicable to lumbar disc disease) indicated the most common risk factors for arthritis were advanced age, obesity, and jobs or hobbies that place repetitive stress on the joints. He opined the right knee osteoarthritis was more likely due to normal wear and tear related to aging. The examiner did not discuss the joint stress associated with the Veteran's active service or his competent reports of knee pain in service. The opinion is not based on consideration of the Veteran's complete medical history. It is inadequate to evaluate the claim. Id. An additional VA etiology opinion must be obtained. See Barr, supra. 4. Entitlement to service connection for a dental injury is remanded. Dental and oral conditions are treated differently than other medical disorders in the VA benefits system. VA compensation is only available for certain types of dental and oral conditions listed in 38 C.F.R. § 4.150. These conditions include, in relevant part, loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. Treatable carious teeth, replaceable missing teeth, and dental or alveolar abscesses are not considered disabling conditions and may only be considered service connected solely for establishing eligibility for VA outpatient dental treatment. See 38 C.F.R. § 3.381(b). The Veteran seeks service connection for a dental condition, claimed as residuals of a mouth injury. He submitted private dental records which document treatment in 2005 and 2006. In a December 2016 statement and in October 2020 testimony, he recalled injuring his mouth on a metal pipe when he took cover in a ditch during a night mission. His service treatment records reflect July 1967 dental treatment for a fractured tooth and the placement of a bridge. June 1968 dental treatment records show three teeth were replaced by dentures. The Veteran may have a current dental problem. An in-service dental injury is confirmed by the service treatment records. Thus, a dental examination must be provided ensure compliance with VA's duty to assist. 38 U.S.C. § 5103A(d); McLendon, supra. In addition, a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental disorder for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and asks that VBA make a decision on relevant questions. 38 C.F.R. § 3.381(a). It does not appear that VHA made a decision regarding the Veteran's eligibility for dental treatment. Thus, the Board finds that a remand is necessary so that VHA may adjudicate the issue of service connection for dental treatment purposes in the first instance. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private medical or dental treatment provider who may have records relevant to his claims. Make two requests for the authorized records from any medical or dental treatment provider identified unless it is clear after the first request that a second request would be futile. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder diagnosed, including posttraumatic stress disorder (PTSD). 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 related to an in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right ear hearing loss is at least as likely as not related to his active service, included conceded noise exposure. The clinician must specifically acknowledge and discuss the Veteran's in-service noise exposure. Simply observing that right ear hearing loss was not noted on in-service hearing tests will be deemed an inadequate rationale for a negative etiology opinion. If the clinician attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding that explains why the current hearing loss would be more likely due to factors other than the in-service noise exposure. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veterans reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the clinician finds an additional examination is necessary, schedule an examination 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right knee arthritis is at least as likely as not related to his active service. The examiner should specifically discuss the Veteran's active service duties, including parachute jumping, and stress on the right knee due to these duties. He should also discuss the Veteran's reports of parachute landings in rutted fields, landings in holes, and knee pain in service. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veterans reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the clinician finds an additional examination is necessary, schedule an examination 5. Schedule the Veteran for an examination regarding his service connection claim for a dental disability for compensation purposes. The selected examiner must first address whether the Veteran has a current dental disability as contemplated by 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The nature and extent of this disability must be specifically discussed in the examination report. The examiner must then provide an opinion as to whether this disability is at least as likely as not (50 percent probability of greater) the result of the in-service injury as reported by the Veteran in his December 2016 statement and October 2020 testimony and as documented in the service dental treatment records from July 1967 and June 1968. 6. Develop and adjudicate the claim for VA outpatient dental treatment. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Celtnieks, Jeanne 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.