Citation Nr: 22011877 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 20-11 951 DATE: March 2, 2022 ORDER Service connection for tinnitus is granted. Service connection for a sleep disorder is denied. Service connection for a disability manifested by angina is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for a left leg muscle impairment is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for a left middle finger disability is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the appellant's tinnitus had its onset during service. 2. The appellant has sleep problems associated with his acquired psychiatric disorder, but does not have a separately diagnosed sleep disorder. 3. The appellant has chest pains associated with his acquired psychiatric disorder, but does not have a separately diagnosed disability manifested by angina. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an award of service connection for a disability manifested by angina have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had service in the Army National Guard, to include a period of active duty for training (ACDUTRA) from February 2000 to May 2000. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2016 and November 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. The appellant's claims for service connection for PTSD and anxiety have been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. At the hearing, the appellant waived agency of original jurisdiction (AOJ) review of additional evidence added to the record since the time that his appeals were perfected. 38 C.F.R. § 20.1305(c). Although additional evidence has been added to the record since the time of the hearing, none of it bears meaningfully on the outcome of the issues that are currently being decided. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit another waiver of AOJ review from the appellant. See 38 C.F.R. §§ 19.31, 20.1305(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes, or full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for Veterans Claims held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disabilityany additional impairment of earning capacityin nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence." Id. at 239. In adjudicating the appellant's claims, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. An approximate balance of the evidence includes but is not limited to equipoise. Lynch v. McDonough, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. 1. Entitlement to service connection for tinnitus Initially, the Board notes that there is no dispute that the appellant has tinnitus. The report of a June 2020 VA examination clearly reflects a diagnosis of tinnitus. Private medical records dated in February 2017 and March 2017, and VA treatment records dated in 2020 and 2021, also reflect such a diagnosis. As to the nexus, or link, between the appellant's tinnitus and service, the Board notes that his lay statements are of particular importance in this regard as determinations with respect to the onset and course of tinnitus turn largely on lay testimony. Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002). Here, the appellant testified at the August 2021 Board hearing to the effect that he developed tinnitus during a recognized period of duty in 2000, and has had recurrent symptoms since that time. Similar contentions were set out in a June 2016 statement, a July 2019 Informal Conference Report, and at the June 2020 VA audiology examination. The June 2020 VA examiner provided an opinion against the appellant's tinnitus being etiologically related to service. The examiner's supporting rationale noted, in pertinent part, the lack of evidence of tinnitus in the appellant's service treatment records; that the appellant denied tinnitus in 2016; and that records from March 2017 reflected that tinnitus developed two months earlier. The Board observes that there are no documented complaints or treatment for tinnitus in the appellant's service treatment records. Conversely, however, the record also does not reflect that he ever explicitly denied having tinnitus during service. Moreover, as noted by the June 2020 VA examiner, there is no exit examination in the service treatment records. Significantly, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (explaining that VA erred in relying on a medical opinion when the sole premise for the examiner's conclusions was the lack of notation or treatment of the claimed disability in service). The Board acknowledges that medical records, including those dated in January 2016, reflect that the appellant denied ringing in the ears. However, it is not clear whether he was indicating that he never experienced tinnitus, or that he was not experiencing tinnitus at the time of the visit. Overall, the Board finds that this type of single notation, recorded when the appellant was being evaluated for other conditions, is not sufficiently probative to outweigh his more detailed statements and sworn hearing testimony to the effect that his tinnitus originated in 2000, during a recognized period of duty. Regarding the treatment records from 2017, indicating the tinnitus was of recent origin, the appellant testified in August 2021 that he sought treatment at that time because there had been a significant increase in his symptomatology. In light of the foregoing, the Board finds that the June 2020 VA examiner's opinion is not sufficiently probative to outweigh the appellant's testimony that he developed recurrent tinnitus while on active duty. As noted previously, the law mandates resolving reasonable doubt in favor of the claimant, to include with respect to questions of service origin. Pursuant to the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Alemany v. Brown, 9 Vet. App. 518 (1996). Resolving reasonable doubt in favor of the appellant, the Board finds that the record reasonably supports the conclusion that he developed recurrent tinnitus during service. The appeal of this issue is granted. 2. Entitlement to service connection for a sleep disorder 3. Entitlement to service connection for a disability manifested by angina As noted above, in order to prove service connection, there generally must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson and Pond, supra. The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A thorough review of the medical evidence of record in the appellant's claims file does not reflect that he has been diagnosed with a sleep disorder, such as sleep apnea, at any time proximate to or during the pendency of his claim. Similarly, the record does not reflect that he has been diagnosed with a current heart disability. At the August 2021 Board hearing, the appellant offered testimony to the effect that his sleep problems and angina/chest pains were symptoms of his acquired psychiatric disorder. Although the claims file does not reflect that he has the medical training necessary to offer competent opinions on such matters, his observations are consistent with the fact that no separate sleep or heart disorders are demonstrated by the competent medical evidence of record. In sum, although the evidence reflects that the appellant has sleep problems associated with his acquired psychiatric disorder, he is not shown to have a separately diagnosed sleep disorder. Likewise, although he has chest pains associated with panic attacks attributable to an acquired psychiatric disorder, he is not shown to have a separately diagnosed heart or other disability manifested by angina. In the absence of proof of such disabilities, separate and apart from his psychiatric disorder, there can be no valid claim. As the evidence is persuasively against these claims, the appeal of these issues must be denied. If the appellant is later service connected for a psychiatric disorder, his symptoms of sleep disturbance and panic attacks will be considered in assigning an appropriate evaluation. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety, is remanded. The appellant testified at the August 2021 hearing that he developed psychiatric symptoms at the same time as the symptoms of his now service-connected gastroenteritis. He also testified that he had greater psychiatric symptoms when experiencing flare-ups of gastroenteritis. The appellant's service treatment records do not reflect a diagnosis of, or treatment for, an acquired psychiatric disorder while on military duty. However, private treatment records from the Counseling Center at Texas State University do reflect such findings in March 2005, with reference to treatment that began in November 2004. In pertinent part, these records include a March 2005 report which noted diagnoses of major depressive disorder and anxiety disorder not otherwise specified (NOS); and indicated that problems were triggered by the prospect of activated military service, which was set to begin in April 2005. The evidence reflects that these records were submitted and considered as part of the appellant's hardship exemption/discharge from service in 2005. The appellant was afforded a VA examination in February 2021 regarding his contention that he had a psychiatric disorder that was secondary to his service-connected gastroenteritis. In pertinent part, the examiner diagnosed specific phobia, other, with a notation relating to fear of situations that may lead to vomiting. Nevertheless, the examiner opined that the claimed condition was less likely than not proximately due to or the result of the appellant's service-connected condition. The examiner's rationale was that the condition appeared related to phobic reaction rather than the event (medical) itself. The examiner also stated that the appellant's condition, which was not PTSD, appeared to have been aggravated beyond its natural progression by anxiety. The Board finds the examiner's report to be ambiguous regarding whether the appellant has an acquired psychiatric disorder that might be secondary to his service-connected gastroenteritis. In part, the examiner's findings appear to be inconsistent with the fact that the appellant has been diagnosed with acquired psychiatric disorders other than a phobia. For example, VA treatment records list chronic PTSD and anxiety as active problems. The Board further notes that VA treatment records dated in October 2020 include findings of "PTSD, anxiety stemming more from prior gastric and IBS symptoms." However, it is not clear whether the reference to prior gastric and IBS symptoms is in regard to the PTSD, the anxiety, or both, or to what extent such impairment may be due to the service-connected gastroenteritis. In light of the foregoing, the Board finds that the evidence, including the February 2021 VA examination report, is not adequate for resolution of the claim. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additional development is necessary. 2. Entitlement to service connection for a prostate disability is remanded. 3. Entitlement to service connection for left leg muscle impairment is remanded. The appellant testified at the August 2021 hearing that he had inflammation of the prostate that coincided with flare-ups of gastrointestinal symptoms. He also noted an injury to his penis while on military duty. The appellant's service treatment records do note treatment for fibrosing hardening of the penis (non-erectile) in September 1999. He also reported the penis changing color. He was evaluated to rule out penile vascular problems, and there was a finding of acrocyanosis. He has since testified that he has been diagnosed with prostatitis. A December 2020 statement from a Dr. JMG noted prostate problems. As to the left leg, the appellant testified that he experienced cramping of the left calf muscle when he had flare-ups of gastrointestinal symptoms. The Board notes that the RO denied the claim, in part, because records from 2016 noted mild pain of the distal quad which was expected to resolve with treatment. However, the November 2016 records reflect that those observations were made in regard to a right knee injury that occurred at that time. As noted, the appellant indicated at the hearing that the disability currently at issue affected his left calf. It is not clear from the evidence of record whether the appellant's prostate and left leg disabilities are secondary to his service-connected gastroenteritis, as contended. Medical examinations and opinions are necessary to resolve these matters. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 4. Entitlement to service connection for asthma is remanded. The available medical records, including records dated in July 2013, reflect that the appellant has been diagnosed with exercise-induced asthma. He contended at the August 2021 hearing that he had breathing problems related to his gastrointestinal symptoms, as well as damage to his throat. His contentions regarding his throat are significant in that service connection has now been established for chronic laryngitis. Further, the July 2013 records noted that he presented with throat problems. The appellant has presented evidence suggesting an association between his asthma and a service-connected disability, particularly chronic laryngitis. Under the circumstances, an examination and medical opinion are warranted. See McLendon and Colvin, supra. 5. Entitlement to service connection for a left middle finger disability is remanded. 6. Entitlement to service connection for TBI is remanded. The appellant testified that he sustained a head injury and an injury to his left middle finger due to a fall that occurred as a result of a flare-up of his gastrointestinal symptoms. Similar contentions were noted in a July 2019 Informal Conference Report. Although no such fall is documented in the appellant's service treatment records, he is competent as a lay person to describe the event. The Board observes that VA treatment records note pain of the left middle finger as an active problem. However, nothing in the records attributes the finger pain to an injury from a fall. In addition, although a February 2021 VA examination report included notations of the TBI claim, it does not appear that the appellant was explicitly evaluated for a TBI. Further, his medical treatment records do not identify any chronic residuals of TBI due to the claimed fall. It is unclear from the record whether the appellant has a chronic middle finger disability and/or TBI residuals as a result of the claimed injuries from a fall that occurred as a result of a flare-up of gastrointestinal symptoms. A medical examination and opinion are warranted to clarify these matters. See McLendon and Colvin, supra. 7. Entitlement to TDIU is remanded. Resolution of the remanded issues may impact the analysis of whether the appellant is entitled to a TDIU. Accordingly, the issues are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on another issue). As such, the Board will remand the TDIU issue as well. These matters are REMANDED for the following action: 1. Ask the appellant to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant should be notified. 2. Obtain copies of records pertaining to any VA treatment the appellant has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the appellant scheduled for a VA mental disorders examination. The examiner should review the record. All indicated tests (to include psychological testing, if necessary) should be conducted and the results reported. After examining the appellant and reviewing the record, to include the results of any necessary testing, the examiner should indicate whether the appellant has met the DSM-5 diagnostic criteria for PTSD at any time since June 2016 (when he filed his claim for service connection). If it is the examiner's opinion that the diagnostic criteria for PTSD have been met, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to a verified stressor. If psychiatric disorders other than PTSD are diagnosed (or are found to have been present at any time pertinent to the present appeal), the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder had its onset in, or is otherwise attributable to, service. This opinion should reflect consideration of the appellant's testimony that he developed psychiatric symptoms at the same time as the symptoms associated with his service-connected gastroenteritis; as well as the medical records from the Counseling Center at Texas State University reflecting treatment from 2004 to 2005. The examiner should also address the findings of chronic PTSD and anxiety in the VA treatment records in identifying the current disorder(s). If it is the examiner's opinion that it is unlikely that an identified psychiatric disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the appellant's service-connected gastroenteritis. That opinion should reflect consideration of the appellant's contention he has increased psychiatric symptoms during flare-ups of his gastrointestinal symptoms. A complete rationale for any opinion(s) expressed must be provided and should reflect consideration of the Court's holding in Ward, to the effect that the worsening need not be permanent in order to support a finding of aggravation. 4. Also arrange to have the appellant scheduled for VA examinations pertaining to his claimed prostate disability, muscle impairment of the left leg, asthma, left middle finger disability, and TBI. The examiner(s) should review the record. All indicated tests should be conducted and the results reported. After examining the appellant and reviewing the record, together with the results of any testing deemed necessary, the examiner(s) should offer opinions as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that disabilities pertaining to the appellant's prostate, muscle impairment of the left leg, asthma, left middle finger, and/or TBI had their onset in, or are otherwise attributable to, his service. As to the prostate disability, the medical opinion should reflect consideration of the treatment for penis problems in the September 1999 service treatment records. For the claimed left middle finger disability and TBI, the examiner's opinions should reflect consideration of the appellant's report that he sustained injuries to his head and left middle finger in a fall that occurred as a result of a flare-up of gastrointestinal symptoms. If it is the examiner's opinion that it is unlikely that an identified disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the appellant's service-connected gastroenteritis. The examiner's opinion should reflect consideration of the Court's holding in Ward, to the effect that the worsening need not be permanent in order to support a finding of aggravation. For the claimed prostate disability and left leg muscle impairment, the examiner's opinion should also reflect consideration of the appellant's contention that he experiences problems with his prostate when he has flare-ups of gastrointestinal symptoms. For the exercise-induced asthma, the examiner's opinion should reflect consideration of the appellant's contention that such problems are secondary to his service-connected gastroenteritis and/or chronic laryngitis. A complete rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.