Citation Nr: 18124016
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-34 999A
DATE:	August 3, 2018
ORDER
The appeal as to the issue of whether new and material evidence has been received to reopen the Veteran's claim of service connection for a right shoulder injury is dismissed.
The appeal as to the issue of whether new and material evidence has been received to reopen the Veteran's claim of service connection for right hand tenosynovitis or middle and ring fingers is dismissed.
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or anxiety is remanded.
FINDINGS OF FACT
1. At the March 2018 Board hearing, the Veteran, through his representative, requested to withdraw the issue of whether new and material evidence has been received to reopen his claim of service connection for a right shoulder injury.
2. At the March 2018 Board hearing, the Veteran, through his representative, requested to withdraw the issue of whether new and material evidence has been received to reopen his claim of service connection for right hand tenosynovitis or middle and ring fingers.
3. The Veteran is represented and is presumed aware of the outcome of the decision to withdraw his claim as to these two issues.
4. The probative evidence of record is at least in equipoise as to whether the Veteran’s tinnitus is a result of service or etiologically related to in service noise exposure.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal on the issue of whether new and material evidence has been received to reopen the claim of service connection for a right shoulder injury have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
2. The criteria for withdrawal of a substantive appeal on the issue of whether new and material evidence has been received to reopen the claim of service connection for right hand tenosynovitis or middle and ring fingers have been met and the appeal as to this issue is withdrawn. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from May 1962 to December 1965. In March 2018, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
Whether new and material evidence has been received to reopen the Veteran's claims of service connection for a right shoulder injury and/or right hand tenosynovitis or middle and ring fingers.
Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c).
In the present case, at the March 2018 hearing, the Veteran, through his representative, withdrew from consideration the issues of whether new and material evidence has been received to reopen his claims of service connection for a right shoulder injury and/or right hand tenosynovitis or middle and ring fingers. As he is represented and they reached the decision jointly, he is presumed to be aware of the effects of this action. Accordingly, the Board does not have jurisdiction to review the appeal on as to these issues, and they are dismissed.
Entitlement to service connection for tinnitus.
As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).
Where a Veteran served for ninety (90) days or more during a period of war, and an organic disease of the nervous system, such as tinnitus, becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2017); 38 C.F.R. §§ 3.307, 3.309. 
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are recognized by VA as being included with these enumerated diseases. 38 C.F.R. § 3.309(a).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a) (2012). 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). 
Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Initially, the Board observes that the Veteran’s service records are silent as to any complaints of hearing loss or tinnitus.
The Veteran received a VA examination in March 2014. The VA examiner determined that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss. Unfortunately, the Veteran’s current hearing loss was opined as being less likely than not caused by or the result of his military service. 
During the March 2018 Board hearing, the Veteran and his representative challenged the adequacy of the prior VA examination. Particularly, it was alleged that the VA examiner did not acknowledge the Veteran’s subjective complaints of tinnitus. 
The Board also observes that the Veteran has recently filed a new claim of entitlement to service connection for bilateral hearing loss. He received another VA audiological examination in July 2018. The examiner determined that the Veteran’s bilateral hearing loss is less likely than not related to service. In the tinnitus section, the examiner reported that the Veteran complained of tinnitus around 1972, which he described as a constant droning noise when flying in airplanes without ear protection. Notably, the examiner determined that the Veteran’s tinnitus is at least as likely as not caused by or a result of military noise exposure. The examiner explained that:
Exposure to continuous and/or impulse noise can damage the structure of hair cells in the cochlea. All it takes is one exposure. Tinnitus can be present with a hearing loss or alone, without a hearing loss. The Veteran had a primary specialty of aero-medic and flew in C47’s going to different bases. They simulated a crash on the flight line with nuclear weapons. The Veteran fired weapons for training purposes including an M1 rifle.
Of the probative medical opinions of record, one is favorable toward the Veteran’s claim and the other is unfavorable. The March 2014 VA examiner reasoned that the Veteran’s tinnitus was a symptom of his nonservice-connected bilateral hearing loss. Meanwhile, the July 2018 VA examiner determined that the Veteran’s tinnitus is at least as likely as not caused by or a result of military noise exposure, including airplane engine noise without use of hearing protection.
In light of the totality of the circumstances, and giving the Veteran the full benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran’s tinnitus is a result of noise exposure during his active duty service. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for tinnitus. 38 U.S.C. § 5107.
REASON FOR REMAND
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or anxiety is remanded.
Initially, the Board observes that the Veteran’s service records are essentially negative for any psychiatric treatment.
The Board further observes that the Veteran has received some VA mental health treatment. It appears that he has been diagnosed with PTSD and anxiety.
The Veteran has reported several in service stressors, including being aboard an airplane when it crashed in France. However, a formal finding has been issued that this stressor could not be verified. The Veteran has also claimed that as part of his duties as an aero-medic, he frequently treated premature babies who often died while in his care.
Significantly, the Veteran has never received a VA psychiatric examination. During his March 2018 testimony, the Veteran and his representative indicated that they intended to submit additional psychiatric evidence. In March 2018, the Veteran submitted a PTSD DBQ completed by Dr. Vallens, a private psychologist. Dr. Vallens concluded diagnosed the Veteran with PTSD and concluded that it “is the result of his disturbing medical duties and responsibilities over the course of his 4-year enlistment. His duties included identifying body parts of deceased pilots as well as attending to the medical needs of premature babies, most of whom died, and their suffering parents.” 
Given the above, the Board finds that a VA psychiatric examination would help shed considerable light on this issue.
Finally, as noted above, the Veteran has received some VA treatment for his claimed disorder. The Board finds that it would be prudent for all of his outstanding treatment records to be obtained.
The matters are REMANDED for the following action:
1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran’s electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file.
2. After pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of his claimed acquired psychiatric disorder, to include PTSD and/or anxiety. The examiner is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed.
(a) After the review of the electronic claims file and examination of the Veteran, the examiner should identify and state all acquired psychiatric disorders found. An explanation for any opinions expressed must be provided, and if the requested information cannot be provided without resort to speculation, the examiner should so state and explain why.
(b) If the examiner does not find any acquired psychiatric disorder(s) or finds that a diagnosis of such is not appropriate, the examiner should give specific reasoning for that conclusion. If no disorder is found the examiner must express whether the disorder existed earlier in the appeal period and the examiner should clearly explain why the noted evidence does not establish a chronic diagnosis.
(c) If and only if the examiner finds that any acquired psychiatric disorder(s) is/are present, or was/were present at any time during the appeal period though it has since resolved, the examiner should then opine whether the Veteran’s identified disorder(s) at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service.
The examiner should specifically address the Veteran’s contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any previous examination reports (including the March 2018 report from Dr. Vallens), as well as any other pertinent evidence of record, as necessary.  
The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. 
 
If the report is deficient in any manner, the AOJ must implement corrective procedures at once.

 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Miller, Associate Counsel 

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