Citation Nr: 22011672 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 16-40 319 DATE: March 1, 2022 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for a chronic fatigue disorder, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 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 1987 to September 1987 and from October 1989 to June 1994. In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In November 2019, the Board remanded this case for additional development. 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for tinnitus and asserts that his tinnitus began as a result of result of firing off rounds in the military during his deployment to Saudi Arabia. The Veteran's description of in-service noise exposure is consistent with the circumstances of his military service. Therefore, the Board acknowledges the Veteran was exposed to hazardous noise in service. It is also not in dispute that the Veteran has tinnitus, as the competent medical evidence of record documents a current diagnosis for recurrent tinnitus. Accordingly, what must still be shown to establish service connection for tinnitus is a nexus to service. After a thorough review of the record, the Board finds that the competent evidence of record reasonably supports the Veteran's claim that he has had tinnitus since service. In that regard, in January 2020, the Veteran's private audiologist provided a positive nexus opinion and explained that the Veteran did not have tinnitus upon entry into service, he was exposed to extreme noise on active duty, and he was not exposed to occupational or recreational noise after his active duty (as a mail carrier). The examiner also noted that the Veteran reported having frequent and now continuous tinnitus since service and, although he reported his tinnitus began a couple years ago during a VA examination, he clarified that he actually reported his tinnitus had gotten worse during the past couple of years. The Board acknowledges the negative nexus opinions provided by the August 2013 and January 2020 VA examiners. As previously indicated by the Board in its November 2019 remand, the August 2013 VA medical opinion is insufficient for adjudication purposes. The Board also finds the January 2020 VA medical opinion insufficient because the examiner did not adequately consider the Veteran's in-service hazardous noise exposure. Accordingly, the Board affords these medical opinions little to no probative value. In sum, the Board finds that the evidence is at least in equipoise as to whether the requisite elements of service connection for tinnitus are met. The Veteran has a current disability of tinnitus, he sustained noise trauma during active service, and there is competent and credible evidence establishing a link between the Veteran's current tinnitus and active service. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue and respiratory disorders, to include as due to an undiagnosed illness are remanded. In the November 2019 remand, the Board instructed the RO to obtain VA Gulf War examinations to address the etiology of the Veteran's chronic fatigue and respiratory disorders. The examiner was asked to determine whether the Veteran's chronic fatigue and respiratory disorders were diagnosable chronic multisymptom illnesses with partially explained etiologies, diseases with clear and specific etiology and diagnoses, medically unexplained chronic multisymptom illnesses, or, if there were symptoms of any chronic fatigue/respiratory disorders that were not addressed by any diagnosis, qualifying chronic disabilities or undiagnosed illnesses. In February 2020, the Veteran underwent VA chronic fatigue and respiratory examinations to evaluate these disorders. The same VA examiner evaluated both disorders. The examiner documented the Veteran's reports that he tired after work and had bronchitis every winter. The examiner indicated the Veteran did not have a diagnosis for chronic fatigue and found no diagnosed disability for a respiratory disorder. The examiner also indicated that, despite not having a current respiratory diagnosis, the Veteran's occasional bronchitis was a diagnosis with a clear and specific etiology. In spite of the RO's attempts at obtaining adequate VA examinations, the February 2020 VA examinations did not comply the November 2019 remand directives. In that regard, VA Gulf War examinations were not performed, and the VA examiner did not otherwise consider/discuss the Veteran's reported symptoms of fatigue and respiratory problems, to include shortness of breath and coughing, and whether they were medically unexplained chronic multisymptom illnesses or otherwise undiagnosed illnesses. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is warranted for new VA examination(s) consistent with the directives herein. The matters are REMANDED for the following action: Obtain VA Gulf War examination(s) and opinions from appropriate examiner(s) to determine the nature and etiology of the Veteran's chronic fatigue and respiratory disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to address the following: a) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's chronic fatigue and/or respiratory disorders are due to 1) a diagnosable chronic multisymptom illness with a partially explained etiology, or 2) a disease with a clear and specific etiology and diagnosis? b) If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the diagnosed disorder was incurred in service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia. c) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's chronic fatigue and/or respiratory disorder are medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. A medically unexplained chronic multisymptom illness may include signs or symptoms such as fatigue, skin signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, upper or lower respiratory systems signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, and abnormal weight loss. d) If symptoms of fatigue and/or respiratory issues are not addressed by any diagnoses, is at least as likely as not (a 50 percent or greater probability) that the symptoms are a qualifying chronic disability or an undiagnosed illness? Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. In rendering the above opinions, the examiner should consider and discuss the lay reports that the Veteran has symptoms of low energy levels, tiredness, shortness of breath, and coughing spells since returning from the Gulf War. See September 2013 Buddy Statements and July 2019 Board Hearing Transcript. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.