Citation Nr: 22012171 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-16 963 DATE: March 2, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder, is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a disability manifested by chest pain and respiratory issues is remanded. Entitlement to service connection for an erectile dysfunction disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has an acquired psychiatric disability, to include PTSD and major depressive disorder, that is related to his service. 2. The Veteran has a current tinnitus disability that is consistent with his in-service noise exposure. CONCLUSIONS OF LAW 1. The Veteran's acquired psychiatric disability, to include PTSD and major depressive disorder, was incurred during his military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Notably, the January 2014 rating decision denied service connection for posttraumatic stress disorder (PTSD) and anxiety. In his February 2014 Notice of Disagreement (NOD), the Veteran disagreed with the denial of his PTSD and anxiety disorders. However, the Board acknowledges that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will accordingly consider entitlement to service connection for any and all psychiatric disorders. As a result, in conjunction with Clemons and as addressed below, the claim has been characterized as entitlement to service connection for an acquired psychiatric disorder. Service Connection Laws and Regulations 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include psychosis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as psychosis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Acquired Psychiatric Disorder Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1); see also, 38 U.S.C. § 1154(b). Similarly, if a stressor claimed by a veteran is related to the Veteran's 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 diagnosis of posttraumatic stress disorder and that the Veteran'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 Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V). 38 C.F.R. § 4.130 (2016). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. This claim was pending before the agency of original jurisdiction on August 4, 2014, and DSM-5 applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). The Veteran testified that his current psychiatric disorder was a result of his service as he is a combat veteran who experienced stressful circumstances during his time in the Gulf War. Additionally, buddy statements submitted in December 2021 and October 2021 noted that the Veteran experienced "life altering" events while the Veteran's wife submitted a statement in December 2021 indicating that when the Veteran returned home from service he was withdrawn, and often "seemed to be in a daze". The Veteran underwent a VA examination in October 2013. The examiner found that the Veteran did not have a PTSD diagnosis that confirmed with DSM-IV and did not have a mental disorder that confirmed with DSM-IV. The examiner concluded that the Veteran's current symptoms and level of functioning did not warrant a DSM-IV Axis I or Axis II diagnosis as there was no social and occupational impairment although the Veteran did report intermittent anger outbursts and difficulty tolerating loud noises. In a February 2016 correspondence, a physician noted that the Veteran's history and symptoms were consistent with depression. A diagnosis of major depressive disorder was provided. In a November 2021 correspondence, a predoctoral psychology intern who was being supervised by a licensed psychologist indicated that the Veteran was diagnosed with PTSD and recurrent moderate episode of major depressive disorder. His current symptoms included intrusive thoughts, nightmares, physical and emotional reactions, multiple symptoms of avoidance, negative changes in cognition and mood related to trauma, and trauma related hyperarousal symptoms. The Veteran reported that these PTSD symptoms began after he returned home from the Marine Corps in 1992 and have continued persistently since that time. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disorder disability is warranted. As there is a current diagnosis of PTSD and a major depressive disorder disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that there are conflicting opinions as to whether the Veteran's current acquired psychiatric disability is related to his service. As noted above, the October 2013 VA examiner concluded that the Veteran's current symptoms and level of functioning did not warrant a DSM-IV Axis I or Axis II diagnosis as there was no social and occupational impairment although the Veteran did report intermittent anger outbursts and difficulty tolerating loud noises. However, a November 2021 correspondence, a predoctoral psychology intern in conjunction with the supervision of a licensed psychologist, determined that that the Veteran PTSD and recurrent moderate episode of major depressive disorder and that the Veteran reported that these PTSD symptoms began after he returned home from the Marine Corps in 1992 and have continued persistently since that time. Notably, the November 2021 assessment indicated that this opinion was based on an assessment of the Veteran's history, along with his subjective complaints and objective findings and clinical test results. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current acquired psychiatric disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is granted. See 38 U.S.C. § 5107 (b). Tinnitus The Veteran contends that his current tinnitus disability was incurred in service. The Veteran's service treatment records are negative for complaints of, treatment for, or findings of bilateral hearing loss or tinnitus. The Veteran underwent a VA examination in November 2014. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military exposure. The examiner noted that the Veteran's tinnitus was not associated with his hearing loss as he did not have hearing loss. At his October 2021 hearing, the Veteran testified that he was a combat veteran with multiple tours who had significant noise exposure during his military service. The record shows that the Veteran currently has a diagnosis of tinnitus. Accordingly, the first element of evidence of a current disability is accordingly met. Therefore, the question to be decided in the present appeal is whether the current tinnitus disability is associated with the Veteran's active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of tinnitus. However, when considering the circumstances of the Veteran's service, he was undoubtedly exposed to some noise in service and his in-service noise exposure has been conceded. As noted above, the November 2014 VA examiner opined that it was less likely than not that the Veteran's tinnitus disability was caused by or a result of military exposure as the Veteran's tinnitus was not associated with his hearing loss as he did not have hearing loss. However, the Veteran has also described his specific in-service noise exposure while also noting that he had noticed ringing in his ears since his time spent in the military. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current tinnitus disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, all doubt is resolved in favor of the Veteran, and service connection for a tinnitus disability, is warranted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. The Board notes that VA is obligated 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 active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for a right shoulder disability, the Veteran testified at his October 2021 hearing that his right shoulder disability resulted from the repetitive use of dead lifting Howitzer rounds which resulted in a lot of repetitive physical trauma. Notably, the Veteran underwent a VA examination in November 2014. The examiner opined that it was less likely than not that the Veteran's current right shoulder disability was incurred or caused by the claimed in-service event, injury or illness. The examiner noted that there was no evidence of right shoulder pain in service or since his discharge and no evidence of a chronic condition. In a January 2018 addendum opinion, a VA examiner indicated that he agreed with the November 2014 VA examiner's opinion as there was no injury in service and there was no indication of a mechanism in the service to produce joint pathology. However, while the November 2014 VA examiner noted that there was no evidence of right shoulder pain in service or since his discharge and no evidence of a chronic condition and the January 2018 addendum opinion found that there was no injury in service and there was no indication of a mechanism in the service to produce joint pathology, it is unclear whether the November 2014 VA or January 2018 examiners considered the Veteran's statements regarding his injury being due to the repetitive lifting of Howitzer rounds in rendering their nexus opinions. Instead, the examiners appeared to focus on the fact that the Veteran's service treatment records were negative for complaints of right shoulder pain while notably not addressing the Veteran's lay statements that suggested continuous symptoms since his separation from service and an injury incurred through the repetitive movement of lifting artillery. Therefore, the Board finds that a remand is necessary to provide the Veteran with a new VA examination relating to his claims for service connection for a right shoulder disability in order to adequately address the Veteran's contentions of continued right shoulder pain since his in-service injuries that resulted from repetitive use. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Regarding the Veteran's claimed back and left knee disabilities, the Veteran underwent a VA examination in January 2014. The examiner found that the Veteran did not have a lumbar spine disability as he had a normal lumbar spine examination with no pathology or arthritis. The examiner also found that the Veteran did not have a left knee disability. The examiner opined that it was less likely than not that the Veteran had a low back or left knee disability that was incurred or caused by the claimed in-service event, injury or illness was no evidence of a chronic condition. However, an October 2021 x-ray treatment report revealed minimal spondylosis while the treatment report noted continued back pain. Additionally, a November 2021 x-ray report of the left knee noted complaints of chronic left knee pain. Notably, the current disability definition for VA compensation purposes is broad and includes functional impairment due to pain. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). Here, the noted left knee pain is considered a current disability if manifested by functional impairment. As a result, while the January 2014 VA examination found that the Veteran did not have lumbar spine or left knee disabilities, the medical evidence of record now demonstrates current low back and left knee disabilities. Regarding the Veteran's claimed left ankle disability, November 2021 x-ray report of the left ankle noted complaints of chronic left ankle pain. Again, the current disability definition for VA compensation purposes is broad and includes functional impairment due to pain. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). Notably, the Veteran has yet to undergo a VA examination regarding his claimed left ankle disability. As there is now evidence of possible current low back, left knee and left ankle disabilities, the Board finds that the evidence currently of record is insufficient to resolve the claims for service connection. Under these circumstances, the Board finds that specific VA examinations and medical opinionsbased on consideration of the Veteran's documented medical history and assertions, and supported by fully stated rationaleare needed to resolve the claims for service connection for low back, left knee and left ankle disabilities. See 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159(c)(4)(i) (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claimed chest pain disability, the Veteran underwent a VA examination in October 2013. The examiner opined that it was less likely than not that the Veteran had a chest pain disability that was incurred or caused by the claimed in-service event, injury or illness as the chest pain was most likely not of cardiac origin. Additionally, on a November 2014 VA examination, the examiner found that the Veteran did not have any diagnosed illnesses for which no etiology was established. However, at his October 2021 hearing, the Veteran testified that while the previous VA examiners evaluated him for chest pain and his heart, they did not evaluate the breathing component of this disability as he had occasional pains in his chest when he took deep breaths. The Veteran also noted that during his service he was exposed to burning oil fields and other contaminants while he was in Iraq. Additionally, in an October 2021 buddy statement, a fellow soldier noted that the Veteran and he were exposed to burning oil wells and that he witnessed the Veteran experience current respiratory problems. Thus, the Board finds that the evidence currently of record is insufficient to resolve the claim for entitlement to service connection for a disability manifested by chest pain and respiratory issues and that further opinion in connection with this claim is necessary for a fully informed evaluation of the claim on appeal. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c) (4). The Veteran has also contended that his claimed erectile dysfunction disability is related to service to include as secondary to his now service-connected acquired psychiatric disorder disability. Notably, the Veteran has yet to undergo a VA examination regarding his erectile dysfunction disability. Accordingly, the Board finds that the Veteran should be scheduled for a VA examination and opinion to determine whether the Veteran's claimed erectile dysfunction disability is related to service, to include as secondary to his now service-connected acquired psychiatric disorder disability. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of his right shoulder disability. The examiner should provide an opinion regarding whether it is at least as likely as not (e.g., a 50 percent or greater probability) that his current right shoulder disability had its onset in or is etiologically related to the Veteran's active service. In making this determination, the examiner should specifically address the Veteran's contentions that his disability resulted from the repetitive nature of loading Howitzer rounds while in service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Schedule the Veteran for appropriate VA examinations, to determine the nature and etiology of his claimed lumbar spine, left knee and left ankle disabilities. The examiner should provide an opinion regarding whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran has current lumbar spine, left knee and left ankle disabilities, and if so, whether they had their onset in or are etiologically related to the Veteran's active service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. Schedule the Veteran for a VA examination to determine the etiology of the claimed a disability manifested by chest pain and respiratory issues. Based on a review of the record and an examination of the Veteran, the examiner should: a) Identify any current disability manifested by chest pain and respiratory issues and fully describe the extent and severity of those symptoms. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability manifested by chest pain and respiratory issues arose during service or are otherwise related to any incident of service. c) If the examiner finds no clinical diagnosis of any disability manifested by chest pain and respiratory issues on examination that was incurred in, caused by, or otherwise related to the Veteran's active military service, he/she should provide an opinion as to whether the Veteran exhibits objective indications of an unexplained, chronic multisymptom illness due to an undiagnosed illness as defined under 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3. 317 "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. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 5. The Veteran should o be scheduled for a VA examination to determine the etiology of the claimed erectile dysfunction disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's has a current erectile dysfunction disability that is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such current erectile dysfunction disability is caused or aggravated by his now service-connected acquired psychiatric disorder disability. If the examiner finds that the Veteran has a current erectile dysfunction disability that has been permanently aggravated/worsened by his service-connected acquired psychiatric disorder disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.