Citation Nr: 21041026 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-03 002 DATE: July 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a respiratory disability, to include asthma, bronchitis, and bronchospastic disease, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression NOS, depressive disorder unspecified, and anxiety NOS, is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S. Army from May 1972 to December 1972 and from January 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 (tinnitus and hearing loss), April 2016 (psychiatric), and September 2017 (respiratory/asthma) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The undersigned held the record open for 60 days for the Veteran to submit a statement regarding the Veteran's respiratory disability; however, no statement was filed. The appeal for service connection for a respiratory disability, to include asthma, bronchitis, and bronchospastic disease was not part of the perfected issues on appeal included in the January 2017 Form 9. Subsequently, the issue of service connection for a respiratory disability was perfected in the May 2019 Form 9. The issue was certified to the Board in May 2020 and the Veteran had the opportunity to provide testimony about it at the April 2021 Board hearing. As this appeal appears to be complete, it has been merged with the appeal for service connection for bilateral hearing loss, tinnitus, and an acquired psychiatric disability, and the Board will consider these matters at this time. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA 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). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. 1. Service connection for bilateral hearing loss. 2. Service connection for tinnitus. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for bilateral hearing loss due to exposure to environmental hazards at Camp Lejeune. Additionally, the Veteran contends service connection for tinnitus due to PTSD. In the alternative, the Veteran contends that his bilateral hearing loss and tinnitus disabilities are due to an assault suffered in service. See 12/23/2014 VA 21-526EZ; see also 4/6/2021 Hearing Transcript, at page 14. At the April 2021 Board hearing, the Veteran testified that he recently underwent hearing tests at the Ralph H. Johnson hospital and the Durham VA hospital, and that he was told that he had hearing loss. See 4/6/2021 Hearing Transcript, at page 26. As such, the Board finds that on remand, attempts are to be made to obtain updated records from the Ralph H. Johnson hospital and the Durham VA hospital as such records would likely be pertinent to the Veteran's disability picture, to include whether he has a current hearing loss disability for VA purposes. 3. Service connection for a respiratory disability, to include asthma, bronchitis, and bronchospastic disease. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for asthma due to exposure to contaminated water at Camp Lejeune. See 6/22/2017 VA 21-526EZ. At the April 2021 Board hearing, the Veteran testified that he first experienced shortness of breath at Camp Pendleton after leaving Camp Lejeune. Additionally, he testified that he had an asthma attack in 1976 and was treated at the Robert H. Johnson Hospital; he had fluid in his lungs and was diagnosed with asthma. See 4/6/2021 Hearing Transcript, at pages 3, 4, and 5. VA treatment records showed that the Veteran was diagnosed with asthma, bronchitis, and bronchospastic disease. See 12/22/2015 CAPRI, at page 74; see also 4/16/2016 CAPRI, at page 27; 12/13/2016 CAPRI, at page 65. The Veteran's service records confirm service at Camp Lejeune for more than 30 days in 1972. See 4/3/2014 Military Personnel Record, at page 7. Therefore, he is presumed to have been exposed to contaminated drinking water at Camp Lejeune. 38 C.F.R. § 3.307(a)(7). However, asthma is not listed in the applicable regulation as a disease associated with contaminated water at Camp Lejeune and subject to presumptive service connection. 38 C.F.R. § 3.309(f). As mentioned above, the Veteran testified that he was treated for an asthma attack in 1976 at the Robert H. Johnson Hospital. As such, the Board finds that on remand, attempts are to be made to obtain the Robert H. Johnson VA Hospital records from 1976 as such records would likely be pertinent to the Veteran's disability picture. Additionally, as noted above, the Veteran has suggested that his respiratory disability started in-service. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination regarding whether the Veteran's respiratory disability, to include asthma, bronchitis, and bronchospastic disease is due to his active service, to include as due to exposure to contaminated water at Camp Lejeune. However, based on the evidence of record, the Board finds that a VA respiratory examination/medical opinion is required. On remand, the AOJ should take appropriate action to schedule a VA respiratory examination. 4. Service connection for an acquired psychiatric disability, to include PTSD, depression NOS, depressive disorder unspecified, and anxiety NOS. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his PTSD was incurred in or caused by his military service. Specifically, during the April 2021 Board hearing, the Veteran testified about 3 incidents that occurred in-service: (1) at boot camp he had to crawl under barbed wires about 2 feet while they were shooting an M16 over his head; (2) at boot camp he witnessed somebody die on the rifle range; a fellow soldier pulled the pin of a grenade, held the hand grenade too long, it exploded, and he died; and (3) Sergeant Noble and Sergeant Pendleton beat him up with a phone book beside the ears, arms, shoulder, and the chest. He further testified that after the assault his head was swollen, his eyes hurt, his nose was bleeding, and he walked sideways. In addition, he testified that the drill Sergeants did not allow him to get medical treatment or tell anyone what happened. Furthermore, he testified that he sought mental health treatment in 1976. See 4/6/2021 Hearing Transcript, at pages 10, 12, 13, and 14; see also 3/1/2016 Correspondence; 12/23/2014 VA 21-0781a; 3/1/2016 Buddy / Lay Statement. Post-service VA treatment records showed that the Veteran was diagnosed with PTSD, depression NOS, depressive disorder unspecified, and anxiety NOS. See 5/2/2014 CAPRI, at pages 40 and 282; see also 1/2/2015 CAPRI, at page 37. The AOJ did not obtain a VA examination regarding whether PTSD, depression NOS, depressive disorder unspecified, and anxiety NOS are due to the Veteran's active service. However, based on the evidence associated with the claims file, the Board finds that a VA examination/medical opinion is required. As noted above, the Board notes that the Veteran has not undergone a VA examination to determine the nature and etiology of any current mental health disability. Based on the evidence of record, the Board finds that such an examination is warranted. On remand, the AOJ should take appropriate action to schedule a VA psychiatric examination. These matters are REMANDED for the following actions: 1. Obtain VA treatment records from 1976 to the present from the Ralph H. Johnson hospital. Furthermore, obtain the VA treatment records from the Durham VA hospital. Additionally, obtain any updated VA treatment records from 2016 to the present. Document all requests for information as well as responses in the claims file. If the records are unavailable, then notify the Veteran and his representative. 2. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disability. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current respiratory disabilities, to include asthma, bronchitis, and bronchospastic disease. After a review of the claims file, the examiner must address: (a.) Compile a list of all respiratory disabilities. (b.) For EACH respiratory disability identified on the current examination, state whether it is at least as likely as not (probability of approximately 50 percent or more), that any of the Veteran's current respiratory disability, in whole or part, had their onset in service. **In doing so, please address the Veteran's contentions that his respiratory disability was due to exposure to contaminated water at Camp Lejeune. See 4/6/2021 Hearing Transcript, at pages 3, 4, and 5.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, 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 the state of 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 directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently mental health disorder. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current psychiatric disorders, to include PTSD, depression NOS, depressive disorder unspecified, anxiety NOS. After a review of the claims file, the examiner must address: (a.) Compile a list of all psychiatric disorders. (b.) For EACH psychiatric disorder identified on the current examination, state whether it is at least as likely as not (probability of approximately 50 percent or more), that any of the Veteran's current psychiatric disorders, in whole or part, had their onset in service. **In doing so, please address the Veteran's testimony that (1) at boot camp he had to crawl under barbed wires about 2 feet while they were shooting an M16 over his head; (2) at boot camp he witnessed somebody die on the rifle range; a fellow soldier pulled the pin of a grenade, held the hand grenade too long, it exploded, and he died; and (3) Sergeant Noble and Sergeant Pendleton beat him up with a phone book beside the ears, arms, shoulder, and the chest. Additionally, after the assault his head was swollen, his eyes hurt, his nose was bleeding, and he walked sideways. Further, the drill Sergeants did not allow him to get medical treatment or tell anyone what happened. In addition, he sought treatment for PTSD in 1976. See 4/6/2021 Hearing Transcript, at pages 10, 12, 13, and 14; see also 3/1/2016 Correspondence; 12/23/2014 VA 21-0781a; 3/1/2016 Buddy / Lay Statement.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. (Continued on the next page) 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 the state of 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). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.