Citation Nr: 18160388
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-63 800
DATE:	December 27, 2018
ORDER
Service connection for bilateral tinnitus is granted.
REMANDED
The issue of entitlement to service connection for bilateral pressure induced otalgia is remanded.
The issue of entitlement to an acquired psychiatric disorder, to include anxiety disorder and major depressive disorder is remanded.
FINDING OF FACT
The Veteran’s tinnitus had its onset in service.
CONCLUSION OF LAW
The criteria for service connection for bilateral tinnitus are met.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 2010 to July 2015.
These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Board has expanded the claim of entitlement to service connection for anxiety disorder and major depressive disorder to one for service connection for an acquired psychiatric disorder, to include anxiety disorder and major depressive disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record.)
In a January 2017 rating decision, the RO declined to address the issue of entitlement to service connection for bilateral tinnitus, indicating that entitlement to service connection for a bilateral ear condition with ears ringing (tinnitus) was already on appeal.  
The Board will grant service connection for bilateral tinnitus in the below decision; however, the Board finds that additional development is required regarding the issue of entitlement to service connection for bilateral pressure induced otalgia. These issues have thus been bifurcated as reflected above.
1. Entitlement to service connection for bilateral tinnitus
The Veteran seeks service connection for bilateral tinnitus.  Specifically, the Veteran contends that he developed bilateral tinnitus as a result of acoustic trauma related to his military occupational specialty (MOS) as Assault Amphibian Mechanic.  Following review of the evidence of record, the Board finds that service connection for bilateral tinnitus is warranted.
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017).
Establishing service connection generally requires medical or, in certain circumstances, lay 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 current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 
Service connection may also be granted through the application of statutory presumptions for chronic conditions.  See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017).  "Other organic diseases of the nervous system," which may include tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service.  38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38.  The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. 
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence.  VA must also consider all favorable lay evidence of record.  See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge).
A current diagnosis of tinnitus is confirmed by the evidence of record.  See April 2015 and November 2018 VA Examination Reports.  The Veteran also reported experiencing ringing in his ears.  See July 2015 Correspondence.  Such lay testimony is competent to establish the presence of observable symptomatology.  Layno, 6 Vet. App. at 469.  Thus, the first element of service connection is met.  
Regarding in-service incurrence, as previously stated, the Veteran attributes his tinnitus to acoustic trauma related to his MOS.  Specifically, amphibious vehicles, .50-calibur and mk-19.  The Board finds the Veteran's account of acoustic trauma to be credible and consistent with the circumstances of his service.  Because in-service noise exposure is established, the second element of service connection has been met.
Turning to the nexus element, the evidence of record includes a November 2018 VA examination report in which the examiner opined that that Veteran’s tinnitus was at least as likely as not caused by or a result of military noise exposure.  The examiner reasoned that based on the Veteran’s MOS which carries a high probability of military noise exposure and the Veteran’s reported history of military noise exposure, the Veteran would likely have been exposed to levels of noise which could contribute to the onset of noise-inducted tinnitus.  The examiner further reasoned that there was no obvious reason for the tinnitus beginning when it did other than the cited military noise exposure.  
The Board finds November 2018 VA opinion to be highly probative.  The opinion was based on a review of the claims file and relevant facts, and the examiner provided a detailed rationale.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
The Board acknowledges that the evidence of record includes an April 2015 VA examination report in which the examiner opined that the Veteran’s tinnitus was less likely a result of his hearing loss because the Veteran did not have hearing loss.  The April 2015 VA examiner noted that the Veteran suffered with occasional tinnitus with duration of less than five minutes that is consistent with typical tinnitus and not that of noise exposure, extreme stress, excessive fatigue, or medicated induced and further opined that it was not possible to determine the exact cause of the occasional tinnitus.  The Board finds the April 2015 VA opinion to be of little probative value.  The April 2015 VA examiner did not provide a rationale for his opinion that the Veteran’s tinnitus is not consistent with that of noise exposure.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). ("[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); see also Stefl, 21 Vet. App. at 124.
In sum, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current bilateral tinnitus was incurred in service.  Hence, affording him the benefit of the doubt, service connection for bilateral tinnitus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
REASONS FOR REMAND
1. Entitlement to service connection for bilateral pressure induced otalgia is remanded.
The Veteran seeks service connection for bilateral pressure-induced otalgia.  Specifically, the Veteran contends that he developed bilateral pressure-induced otalgia as a result of wearing improperly issued helmets that were too tight on his ears during service.
In this regard the evidence of record includes an April 2015 VA examination report in which the examiner noted a current diagnosis of bilateral pressure-induced otalgia.  However, the examiner did not provide an opinion as to the etiology of the Veteran’s bilateral pressure-induced otalgia.  Therefore, the Board finds the April 2015 VA examination inadequate upon which to decide the claim for service connection.  An additional VA examiner opinion is needed.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).
2. Entitlement to an acquired psychiatric disorder, to include anxiety disorder and depressive disorder is remanded.
The Veteran seeks service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder.  Specifically, the Veteran contends that he developed an acquired psychiatric disorder related to his difficulty adjusting to civilian life after service.
VA has not provided an examination or obtained a medical opinion with regard to the Veteran's claim for service connection for an acquired psychiatric disorder.  The Board acknowledges that the Veteran has not claimed a specific in-service incurrence.  However, given the proximity of the psychiatric diagnoses of record to the Veteran’s active service, the Board finds that the low threshold of the McLendon standard has been met and VA should schedule the Veteran for an examination to assess the nature of the Veteran's psychiatric disorders and obtain a definitive opinion concerning whether the Veteran currently has an acquired psychiatric disorder that may be attributed to service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  
The matters are REMANDED for the following action:
1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records.
2. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of his bilateral pressure induced otalgia.  The claims file should be made available to the examiner and review of the file should be noted in the requested report.  The examiner should record the full history of the identified disorder, including the Veteran's competent account of his symptoms.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:
(a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral pressure induced otalgia had its onset in service, or within one year of his separation from service, or is otherwise related to service? In issuing the opinion, the examiner should discuss the Veteran's contention that he has bilateral pressure induced otalgia as a result of wearing improper issued helmets that were too tight on his ears during service.
3. Schedule the Veteran for a VA psychiatric examination to determine the nature, etiology, and date of onset of any psychiatric disorders that were diagnosed during the appeal period, to include anxiety disorder, adjustment disorder, and depression.  The claims file should be made available to the examiner and review of the file should be noted in the requested report.  The examiner should record the full history of the identified disorders, including the Veteran's competent account of his symptoms.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:
(a.) Please identify all current psychiatric disorders.
(b.) For each diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or greater) that the identified psychiatric disorder had its onset during active service, or within one year of the Veteran's separation from active service in July 2015, or otherwise related to service?  In issuing the opinion, the examiner should discuss the Veteran’s opinion that he has an acquired psychiatric disorder related to his difficulty adjusting to civilian life after service.
(c.) In formulating the requested opinions, please specifically acknowledge and discuss the psychiatric diagnoses of record, including anxiety disorder, adjustment disorder, and depression.  Please also specifically address whether the Veteran has psychosis.
(d.) In determining whether the Veteran meets the criteria for a current psychiatric diagnosis, please consider lay and medical evidence dated both prior to and since the filing of the April 2015 claim for service connection.  Please note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis.  Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into consideration in formulating the requested opinions.
All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record.  If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge.

 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Smith-Jennings, 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.