Citation Nr: A25035219 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240705-453911 DATE: April 16, 2025 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a psychiatric disorder other than PTSD, diagnosed as persistent depressive disorder with anxiety disturbance is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for a thoracolumbar spine disorder, claimed as a back condition, is remanded. Entitlement to service connection for gallstones as secondary to a psychiatric disorder, including PTSD, is remanded. Entitlement to service connection for residual scars as secondary to gallstones is remanded. Entitlement to service connection for irritable bowel syndrome as secondary to a psychiatric disorder, including PTSD, and/or gallstones is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT The evidence demonstrates that the Veteran's tinnitus began in service and has been chronic and continuous since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2001 to September 2007. These matters come before the Board of Veterans' Appeals (Board) from a March 2024 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office that in pertinent part denied service connection for PTSD, thoracolumbar spine disorder, bilateral hearing loss, left knee disorder, left wrist disorder, persistent depressive disorder, right ankle disorder, OSA, tinea pedis, tinnitus, asthma, gallstones, irritable bowel syndrome, scars, and sinusitis. In July 2024, the Veteran submitted a timely Decision Review Request: Board Appeal, VA Form 10182, appealing only the issues identified above. The Veteran elected the Direct Review docket. Thus, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal (i.e., March 12, 2024). 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. Because the ungranted claims are being remanded, any evidence that is not considered by the Board at this time will be considered by the AOJ upon readjudication of this claim. As a final initial matter, the Board notes the Veteran's VA Form 10182 purports to appeal the issue of entitlement to service connection for sciatica. That claim was not adjudicated in the March 2024 rating decision, so the Board does not have jurisdiction of the claim at this time. 38 C.F.R. § 20.104. The Veteran also cited a March 2013 rating decision denying service connection for the same claim in his VA Form 10182. The appeal of that rating decision is untimely. 38 C.F.R. §§ 19.20-19.22, 19.50-19.52, 20.203(b), 20.1103. No reason for the untimely appeal has been provided. 38 C.F.R. § 20.203(c). That claim will therefore not be addressed in this decision. Should the Veteran desire to continue his pursuit of this claim, he is encouraged to submit a VA Form 20-0995, Supplemental Claim, identifying new and relevant evidence for the AOJ to consider. Alternately, the Veteran may submit a VA Form 10182 along with a request to docket the appeal out of time for good cause shown, which must be explained in the request. See 38 C.F.R. § 20.203; see also Ferko v. McDonough, 37 Vet. App. 262 (2024); Hall v. McDonough, 34 Vet. App. 329 (2021). Service Connection for Tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38?U.S.C. §§?1110. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d). Service connection for certain chronic diseases, including tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 1956. The existence of tinnitus is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to testify as to his symptoms of tinnitus because tinnitus is a disability capable of lay observation. See Charles, supra. In this case, the Veteran has reported recurrent tinnitus. See March 2024 VA Examination. Furthermore, the Veteran asserts he had in-service noise exposure as a result of working around large generators in confined spaces. See August 2023 VA Form 21-526EZ. The Board finds the Veteran's statements regarding the noise exposure he suffered during service to be highly competent, credible, and probative; such statements are consistent with the types, places, and circumstances of the Veteran's service. See 38 U.S.C. § 1154(a); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the Board finds that the Veteran was exposed to acoustic trauma while in active service. Accordingly, the first and second elements of service connection have been met in this case. With regards to nexus, the Board notes that the Veteran has reported that he has had persistent tinnitus consistently since 2007, around the time of his separation from service. See March 2024 VA Examination. The Board acknowledges the March 2024 VA medical opinion, which opined that the Veteran's tinnitus was not related to his military service; however, the Board finds this opinion inadequate. The opinion does not consider all the relevant evidence of record, including the Veteran's lay statements about his exposure to loud noises, and generally relies on the Veteran's military occupation specialty. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). As such, this opinion is inadequate, and therefore has no probative value. Thus, the only competent, credible, and probative evidence of record is the Veteran's statements regarding onset of his tinnitus during military service or shortly thereafter and the chronicity of such since onset. The Board finds that this evidence is highly probative and, in resolving any doubt in his favor, the Board finds that the evidence demonstrates that the Veteran's tinnitus was incurred in service. Service connection for tinnitus is therefore warranted based on the evidence of record in this case. See 38 C.F.R. § 3.303; Fountain v. McDonald, 27 Vet. App. 258 (2015). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND As an initial matter, the Board observes the Veteran claims service connection for several disabilities as a result of exposure to diesel exhaust, diesel fumes, and fire suppression system chemicals, which the Veteran described as halon gas. Although the AOJ completed a memorandum regarding the Veteran's toxic risk exposure activity (TERA), that memorandum is negative for any such exposures. It is unclear whether the AOJ considered these garrison exposures prior to completing the TERA memorandum on file. Additionally, it appears that the Veteran did get his commercial driver's license in 2003, indicating some likely exposure to driving diesel-fuel vehicles during service. Failing to address these claimed exposures is a pre-decisional duty to assist error, and a remand is appropriate for proper consideration of these claimed exposures. Psychiatric Disorders The Veteran was afforded a VA mental disorders examination in January 2024. That examination report indicates the Veteran has a diagnosis for persistent depressive disorder with anxiety disturbance. However, no opinion regarding the etiology of this disorder is associated with the claims file. Failing to provide such an opinion is a pre-decisional duty to assist error. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). A remand is therefore required to obtain said opinion. Additionally, it is unclear from the January 2024 examination report whether the Veteran was evaluated for PTSD. In this regard, the Board observes the Veteran has submitted information regarding at least three claimed stressors, including a witness statement, which the AOJ did not attempt to verify. The Board finds these claimed stressors, combined with the mental health symptoms identified in the non-PTSD examination report, satisfy the low threshold for obtaining a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Failing to administer this examination, or in the alternate, to provide an examination report regarding the Veteran's lack of diagnosis for PTSD, is a pre-decisional duty to assist error; failing to attempt to verify the Veteran's claimed stressors is likewise a pre-decisional duty to assist error. Accordingly, a remand is required to conduct this additional development. Asthma and Sinusitis The Veteran contends he is entitled to service connection for his diagnosed asthma and undiagnosed sinusitis as a result of exposure to diesel fumes and exhaust while in service. With regard to the Veteran's sinusitis, the Board notes the Veteran indicates he has symptoms consistent with a sinus and/or respiratory disorder. See August 2023 VA Form 21-526EZ ("I have difficulty breathing out of my nostrils and poor sense of smell."). These symptoms, and the Veteran's asthma diagnosis, together with his claimed exposure to diesel fuel, fumes and exhaust while in service satisfy the low threshold for obtaining a VA examination. No such examination was provided to the Veteran prior to the rating decision on appeal. Accordingly, a pre-decisional duty to assist error exists, and a remand is necessary to obtain an examination. See McLendon, supra. Thoracolumbar Spine Disorder The AOJ characterized the Veteran's claim for service connection for a thoracolumbar spine disorder as stemming from obesity; however, the Board notes the Veteran is claiming weight gain as a result of his back injury, not the other way around. See August 2023 VA Form 21-526EZ (showing a claim for weight gain "secondary to back injury"). Rather, the Veteran contends he is entitled to service connection on a direct basis as a result of a fall he sustained in active service. See Id.; August 2023 Buddy Statement. The Board finds the Veteran's statements regarding ongoing back symptoms combined with his in-service fall satisfies the low threshold for obtaining a VA examination for this claim. No such examination was provided to the Veteran prior to the rating decision on appeal. Accordingly, a pre-decisional duty to assist error exists, and a remand is necessary to obtain an examination. See McLendon, supra. Left Knee Disorder The Veteran contends he is entitled to service connection for a left knee disorder resulting from an in-service injury while running. The Veteran's application for service connection states his knee "has a dull ache on inward side after activity." The Board liberally construes this as a claim that the Veteran's knee pain has been persistent since that in-service injury. In this regard, the Board observes that the AOJ found the Veteran did not have a diagnosis for a left knee disorder; however, symptoms alone, including pain, can be service connected provided they result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran's knee pain and his report of an in-service injury satisfy the low threshold for obtaining a VA examination, which the AOJ did not afford to the Veteran prior to the rating decision on appeal. Accordingly, a pre-decisional duty to assist error exists, and a remand is necessary to obtain an examination. See McLendon, supra. OSA, Gallstones, Irritable Bowel Syndrome, and Scars With regard to the Veteran's claim for service connection for OSA, the Board finds that there is no evidence of record indicating the Veteran's OSA began in service or is otherwise directly related to service. A VA examination is therefore not warranted for this claimed disability at this time. See McLendon, supra. At the same time, however, the Board finds the record reasonably raises the issue of entitlement to service connection for OSA secondary to his claimed thoracolumbar spine disability and/or his claimed left knee disability with obesity as an intermediate step. The OSA claim is therefore inextricably intertwined with the Veteran's thoracolumbar spine and knee claims. Additionally, the Veteran's remaining claims for service connection for gallstones, irritable bowel syndrome, and scars are inextricably intertwined with his claim for service connection for a psychiatric disorder because the Veteran contends he is entitled to service connection for these claims secondary to his claimed psychiatric disorder. Accordingly, these four claims must be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Complete a TERA Memorandum regarding toxic exposures as a result of the Veteran's periods of service and upload that Memorandum to the Veteran's claims file. The AOJ should specifically investigate whether the Veteran had exposures to diesel fuel, diesel fumes, diesel exhaust, and fire suppressant chemicals, to include halon gas. If the AOJ finds that these specifically claimed TERAs are not present in this case, the AOJ should explain-in detail-those findings; the AOJ must specifically consider the Veteran's CDL in 2003 during service in this regard. 2. The AOJ should take all appropriate steps to attempt to verify the Veteran's claimed stressors. All actions to verify the alleged stressors should be fully documented in the claims file. If the information provided by the Veteran lacks sufficient specificity to be verified, the AOJ should make a formal finding to that effect after attempting to clarify any information needed with the Veteran. 3. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed psychiatric disorders, to include PTSD and persistent depressive disorder with anxiety disturbance. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should then identify all of the Veteran's psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria throughout the appeal period. Thereafter, if PTSD is diagnosed, the examiner should indicate the stressor upon which such a diagnosis is predicated and opine whether such stressor is the result of military service. If PTSD is not diagnosed, the examiner should provide an explanation of the diagnostic criteria met and not met by the Veteran's reported mental health symptoms. For any non-PTSD diagnosis, including persistent depressive disorder with anxiety disturbance, the examiner should opine whether such began during military service, within one year of discharge therefrom, or is otherwise the result of military service. In addressing the above, the examiner should address all statements regarding the onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 4. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's asthma. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file (and examination if deemed necessary), the examiner should opine whether the Veteran's asthma began during service, or is otherwise the result of military service, to include exposure to environmental hazards and other substances. In providing this opinion, the examiner is asked to consider total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In addressing the above, the examiner should discuss any and all lay statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 5. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed sinusitis or any similar respiratory disorder. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file (and examination if deemed necessary), the examiner should opine whether the Veteran has a distinct diagnosis for sinusitis or any similar respiratory disorder. If the examiner determines the Veteran does not have a distinct diagnosis for sinusitis or any similar respiratory disorder, the examiner should consider whether any reported symptoms (including pain) result in functional impairment of the Veteran's earning capacity. If the symptoms do not result in such impairment, the examiner should provide an explanation for this conclusion. If the symptoms do result in such impairment, the examiner should describe the nature and severity of the impairment. If the examiner concludes the Veteran has a disability, either as a distinct diagnosis or as symptoms causing functional impairment in earning capacity, the examiner should opine whether such disability began in service, within one year of discharge therefrom, or is otherwise the result of military service, to include exposure to environmental hazards and other substances. In providing this opinion, the examiner is asked to consider total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. In addressing the above, the examiner should discuss any and all lay statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 6. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed thoracolumbar spine disorder. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file (and examination if deemed necessary), the examiner should opine whether the Veteran has a distinct diagnosis for a thoracolumbar spine disorder. If the examiner determines the Veteran does not have a distinct diagnosis for a thoracolumbar spine disorder, the examiner should consider whether any reported symptoms (including pain) result in functional impairment of the Veteran's earning capacity. If the symptoms do not result in such impairment, the examiner should provide an explanation for this conclusion. If the symptoms do result in such impairment, the examiner should describe the nature and severity of the impairment. If the examiner concludes the Veteran has a disability, either as a distinct diagnosis or as symptoms causing functional impairment in earning capacity, the examiner should opine whether such disability began in service, within one year of discharge therefrom, or is otherwise the result of military service. In addressing the above, the examiner should discuss any and all lay statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service, including the Veteran's reported in-service fall. A complete rationale should be provided for all opinions and conclusions expressed. 7. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed left knee disorder. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file (and examination if deemed necessary), the examiner should opine whether the Veteran has a distinct diagnosis for a left knee disorder. If the examiner determines the Veteran does not have a distinct diagnosis for a left knee disorder, the examiner should consider whether any reported symptoms (including pain) result in functional impairment of the Veteran's earning capacity. If the symptoms do not result in such impairment, the examiner should provide an explanation for this conclusion. If the symptoms do result in such impairment, the examiner should describe the nature and severity of the impairment. If the examiner concludes the Veteran has a disability, either as a distinct diagnosis or as symptoms causing functional impairment in earning capacity, the examiner should opine whether such disability began in service, within one year of discharge therefrom, or is otherwise the result of military service. In addressing the above, the examiner should discuss any and all lay statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service, including the Veteran's reported in-service injury during PT. A complete rationale should be provided for all opinions and conclusions expressed. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuhns 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.