Citation Nr: 18160669
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-62 521
DATE:	December 27, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for chronic fatigue syndrome is remanded.
Entitlement to service connection for sleep apnea is remanded.
Entitlement to service connection for restless leg syndrome, to include as secondary to sleep apnea, is remanded.
Entitlement to service connection for facial disfigurement with scars is remanded.
Entitlement to service connection for generalized anxiety disorder is remanded.
Entitlement to service connection for depression, also claimed as short-term memory loss, is remanded.
FINDING OF FACT
Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from January 1990 to January 1994.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (Agency of Original Jurisdiction (AOJ)).
1. Entitlement to service connection for tinnitus
Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).
The Veteran seeks to establish his entitlement to service connection for tinnitus. At the outset, the Board clarifies that tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland’s Illustrated Medical Dictionary, 1322 (32nd ed. 2012). In adopting the current rating criteria for tinnitus under Diagnostic Code (DC) 6260, VA described tinnitus as follows:
Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope.
67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002).
The Veteran served during the Gulf War and has an accepted history of exposure to high noise levels from artillery. Notably, his DD-214 reflects that his military occupational specialty was as a field artillery cannoneer. In a January 2014 statement associated with the record at the time he filed his claim, the Veteran contends he was exposed to extremely loud noises from the artillery field exercises, personally firing at least 1000 rounds of artillery himself. He indicated he and his fellow servicemembers did not always have the proper ear protection during this time. He maintains that he did not have tinnitus prior to his active duty service; instead, he explains that it started while he was in active duty service and has been “present chronically ever since.” 
In November 2014, the Veteran underwent a VA examination in connection with his claim for tinnitus. At that time, the Veteran again endorsed experiencing ringing in his ears since his time in service in 1994. However, the audiologist opined it was less likely than not that his tinnitus was caused by or a result of military noise exposure. She came to this conclusion based on the lack of complaints in the Veteran’s C-file. She also noted a normal audiogram when he entered service, but observed no other audiograms were of record. As there was “no change in hearing nor significant threshold shifts to indicate inner ear involvement, which has a known connection to tinnitus,” she concluded it was less likely than not that the Veteran’s tinnitus is related to or caused by military noise exposure. 
In reviewing the evidence, the Board observes that the evidence consists of the Veteran’s lay statements and endorsements of ringing in his ears since service versus the November 2014 examination and opinion. The Board resolves reasonable doubt in favor of the Veteran and grants the claim of entitlement to service connection for tinnitus as due to military acoustic trauma. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) 
REASONS FOR REMAND
Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration.
1. Entitlement to service connection for chronic fatigue syndrome is remanded.
2. Entitlement to service connection for sleep apnea is remanded.
3. Entitlement to service connection for restless leg syndrome, to include as secondary to sleep apnea, is remanded.
4. Entitlement to service connection for facial disfigurement with scars is remanded.
5. Entitlement to service connection for generalized anxiety disorder is remanded.
6. Entitlement to service connection for depression, also claimed as short-term memory loss, is remanded.
The Board first observes that the Veteran’s service treatment records (STRs) are incomplete. In April 2014, the National Personnel Records Center (NPRC) indicated that STRs were not in their possession. Subsequently, the Veteran contacted the NPRC requesting specific records from his surgical treatment at military facilities and a plethora of records were obtained. There is no explanation for this discrepancy, and an additional records request for all STRs must be made prior to any further adjudication.
With respect to the claim of service connection for obstructive sleep apnea, the Veteran claims that this disorder has been caused or aggravated by service-connected deviated septum. The Board finds that medical opinion is necessary for this claim.
With respect to the claim of service connection for facial disfigurement with scars, the Veteran underwent ameliorative surgery during service to repair congenital right lateral facial cleft. By regulation, 38 C.F.R. § 3.306 specifically provides that “[t]he usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.” A post service operative record noted that the right cheek implant was “malpositioned”. As such, the Board finds that medical opinion is necessary to determine whether there was superimposed during service (aggravation by service), or residuals of the in-service surgery that were beyond the usual effects of the intended surgery.
The matters are REMANDED for the following action:
1. The AOJ shall associate the Veteran’s outstanding VA medical treatment records with his file. 
2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for any condition presently on appeal including the endocrinologist who treated him for hypothyroidism in 2000. Thereafter, obtain and associate with the claims folder any private treatment records identified.
3. Complete a thorough and exhaustive search for the Veteran’s service treatment records.
4. Upon completion of the above, afforded an appropriate VA examination in order to determine whether it is at least as likely as not that the Veteran’s ameliorative surgical procedures in service resulted in superimposed injury during service (aggravation by service), or that there were residuals of the in-service surgery that were beyond the usual effects of the intended surgery. The examiner is requested to discuss whether the post-service impression of malpositioned right cheek implant causing lower lid ectropian was beyond the usual effect of the intended surgeries. 
In providing opinion, please consider the following:
•	service treatment records reflecting a pre-service history of a birth defect of the right cheek with the right eye showing a wider lid opening; a right malar implant in August 1993 for congenital malar deficiency, a November 1993 fat graft augmentation of buccal pad for “anticipated” right eryblepharon and extropian; and a December 1993 fat graft augmentation of right submalar triangle for symmetry, 
•	a July 2000 operative record for removal of “malpositioned” cheek implant causing lower lid ectropion; 
•	an October 2002 evaluation by Dr. P. Craig Hobar describing a “malpositioned” cheek implant and lower lid ectropion;
•	a June 2008 report from Dr. Raymond A. Faires describing the Veteran as being born with a rare lateral facial cleft treated with revision and Z-plasty as a child, and in service cheek implant with canthopexy (removal of cheek implant and fat graft) with asymmetric results; and
•	an August 2008 operative report describing a complex facial cleft with canthal laxity with a persisting history of laxity, including the cheek, without good malar prominence. 
5. The Veteran should be afforded an appropriate VA examination in order to determine whether the Veteran’s sleep apnea was caused or aggravated by service-connected deviated septum. The claims file must be made available to and be reviewed by the examiner.
The examiner should specifically indicate whether the Veteran has sleep apnea, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such sleep apnea was caused OR aggravated beyond the normal progress of the disorder by service-connected deviated septum. 
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.
6. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond.

 
T. MAINELLI 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Victoria A. Narducci, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.