Citation Nr: 22013286 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 20-16 440 DATE: March 9, 2022 ORDER Having received new and material evidence, the claim for service connection for tinnitus is reopened. Having received new and material evidence, the claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for tinnitus is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) has been withdrawn and is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for migraine headaches, to include as secondary to service-connected PTSD is remanded. Entitlement to an evaluation in excess of 50 percent disabling since November 8, 2016 and in excess of 70 percent since February 1, 2018 for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 20 percent disabling for right shoulder disability is remanded. Entitlement to an evaluation in excess of 10 percent disabling for left knee iliotibial band friction syndrome is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset on active-duty service. 2. On October 4, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal for TDIU is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of an appeal by the appellant through his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2009 to November 2013 with service in Afghanistan. Of note, the March 2020 Statement of the Case (SOC) included the Veteran's claim for service connection for anxiety, secondary to his service-connected PTSD. However, the Veteran's PTSD includes a rating for anxiety, described as "Post Traumatic Stress Disorder (claimed as anxiety and sleep disturbances)" and rated at 70 percent disabling. As such, the issue of service connection for anxiety has been granted and is no longer on appeal. The Board notes that under the rating code, all psychological disabilities are rated under their symptomology, not their diagnoses, and there is no prejudice to the Veteran by including his claim for anxiety with his service-connected PTSD. Finally, in the March 2020 SOC, the agency of original jurisdiction (AOJ) reopened the Veteran's claims for service connection for bilateral hearing loss and tinnitus. The Veteran previously submitted a claim of entitlement to service connection for bilateral hearing loss and tinnitus which was denied in a May 2016 rating decision on the basis that the Veteran did not have a current disability of hearing loss for VA purposes and no nexus was shown for tinnitus. The May 2016 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, he provided additional evidence in the form of a medical article addressing tinnitus and hearing loss. In addition, the Board notes that the AOJ found sufficient evidence to reopen the claims. Thus, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus began while on active-duty service when he served on a helicopter med-evac crew in Afghanistan. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "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' - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. Tinnitus is included in the list of organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. As an initial matter, the Veteran has a diagnosis of tinnitus and his exposure to excessive military noise is conceded, as seen in the April 2016 Hearing Loss and Tinnitus examination. Thus, the current disability and the in-service injury elements required for service connection are met. 38 C.F.R. § 3.303. Turning to the nexus requirement, the Board notes that the Veteran is competent to report ongoing tinnitus as result of his noise exposure as an aviation operation specialist and helicopter crew member. Furthermore, the Board finds his report credible. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds the nexus requirement is met and service connection for tinnitus is warranted. 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn the issue of TDIU in writing. This writing included the name of the Veteran, the applicable VA file number, and an unambiguous statement that the appeal is withdrawn. Specifically, in the October 2019 correspondence, the Veteran's attorney wrote, "Veteran is working and does not wish to pursue compensation for unemployability...He wishes to withdraw his appeal as to the individual unemployability only." DiLisio v. Shinseki, 25 Vet. App. 45 (2011). Hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he has hearing loss as a result of his exposure to excessive military noise when he served as an aviation operation specialist and aboard a med-evac helicopter during a year-long deployment to Afghanistan. In the April 2016 Hearing Loss and Tinnitus examination, the Veteran was not found to have had hearing loss for VA compensation purposes. In August 2018, the Veteran submitted a medical article from the National Institutes for Health regarding hearing loss and early noise exposure. In light of the possibility that the Veteran's hearing loss may now qualify as a disability for VA compensation purposes under 38 C.F.R. § 3.385, and the requirement for a medical opinion to address the medical evidence submitted by the Veteran, the Board finds a new VA examination is warranted. 2. Entitlement to service connection for migraine headaches, to include as secondary to service-connected PTSD is remanded. The Veteran was scheduled for a VA examination to assist him in his claim for service-connection for migraine headaches, to include as secondary to his service-connected PTSD. In April 2020, the Veteran submitted a letter regarding missing the appointment, stating that he had received a call from his employer to go to work at a location over 300 miles from where the scheduled appointment was located and was unsuccessful on several attempts to re-schedule the appointment. The Board finds that this constitutes good cause for missing the appointment. 38 C.F.R. § 3.655. Accordingly, a remand is warranted to afford the Veteran a new appointment for his claim for migraine headaches. 3. Entitlement to an evaluation in excess of 50 percent disabling since November 8, 2016 and in excess of 70 percent since February 1, 2018 for post-traumatic stress disorder (PTSD) is remanded. 4. Entitlement to an evaluation in excess of 20 percent disabling for right shoulder disability is remanded. 5. Entitlement to an evaluation in excess of 10 percent disabling for left knee iliotibial band friction syndrome is remanded. The Board notes that the current level of disability is most important in claims for an increased rating. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the most recent examination of the Veteran's service-connected PTSD was in February 2019, the most recent examination for his right shoulder was in March 2018 and the most recent examination for his left knee was in June 2018. Although age of an examination is not, in itself, an automatic reason for remand, the Board finds that a current examination is necessary to determine the overall disability picture for each of the Veteran's service-connected disabilities on appeal. As such, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the file. 2. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's bilateral hearing loss at least as likely as not related to service, including the conceded excessive military noise exposure while serving on a med-evac helicopter in combat conditions in Afghanistan? In so doing, the examiner must address the article submitted by the Veteran in August 2019, "Acceleration of Age-Related Hearing Loss by early Noise Exposure: Evidence of a Misspent Youth." 3. Schedule the Veteran for a VA examination for his claimed migraine headaches. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the Veteran's migraine headaches at least as likely as not related to service, to include his head injury when his right shoulder was injured when attempting to catch a 50 pound backpack caused him to fall and hit his head on the asphalt, resulting in being dazed and taking "30 seconds to a minute to regain his senses?" Are the Veteran's migraine headaches at least as likely as not proximately due to his service-connected PTSD? Are the Veteran's migraine headaches at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD? In so doing, the examiner must address the articles submitted by the Veteran in August 2019, "The Link Between PTSD and Headaches." 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with anxiety and sleep disturbances. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric PTSD disability alone. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Provide a thorough rationale to support each of the opinions, as the Board is precluded from making medical determinations. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.