Citation Nr: 1009997 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 06-37 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for sleep disorder disability. 3. Entitlement to service connection for right shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from February 2001 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his spouse testified at a personal RO hearing in November 2007. A Board hearing at the local RO where the Veteran testified was held in July 2008. The Board previously remanded these issues for further development in November 2008. The issues of entitlement to service connection for sleep disorder disability and right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Bilateral hearing loss manifested during the Veteran's active duty service. CONCLUSION OF LAW Bilateral hearing loss was incurred during the Veteran's active duty service. 38 U.S.C.A. § 1110, 1153, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for bilateral hearing loss. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Board acknowledges that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Initially, the Board observes that the VA has determined that the Veteran did engage in combat. Thus, the provisions of 38 U.S.C.A. § 1154(b) are applicable and the Veteran's assertions regarding any combat related hearing loss are accepted despite the lack of supporting documentation in service treatment records. Further, although the Veteran's hearing remained within normal range pursuant to 38 C.F.R. § 3.385, service treatment records do show a threshold shift in hearing acuity from the January 2001 entrance evaluation to the April 2005 discharge evaluation. The Veteran filed his claim in June 2005 shortly after his discharge from service. He was afforded a VA examination in August 2005. The examiner noted that military exposure was significant for artillery and aircraft noise, grenades, explosions, etc. The Veteran also had some occupational noise exposure, but use of hearing protection was optional. The Veteran denied any recreational exposure. Upon examination, the Veteran had clinically normal hearing by VA standards from 250 Hertz to 8000 Hertz. The examiner also found that the Veteran had extremely over-compliant middle ear systems bilaterally, with normal resting pressure, and CNE acoustic reflex thresholds due to hypermobility and tympanic membranes. After reviewing the claims file, the examiner observed that the service treatment records included a January 2001 audiological examination and April 2005 audiological examination. It was noted that although hearing was within normal limits, a standard threshold shift did occur in both ears during service. Moreover, the Veteran's currently measured middle ear function, which demonstrated overly-compliant tympanic membrane movement bilaterally, indicated a possible ossicular discontinuity that also supported Veteran's claim of acoustic trauma/blast injury from grenade explosion in 2002. However, the examination showed that the Veteran did not meet the requirements of 38 C.F.R. § 3.385 for service connection purposes. At the November 2007 RO hearing, the Veteran testified that he was exposed to combat noise while in service. He also described his current hearing problems. In a subsequent lay statement, the Veteran's wife reported that the Veteran's hearing gave him trouble and that unless a person was face to face with him, he could not hear them. The Veteran was afforded another VA examination in February 2008. Some intermittent occupational noise exposure was reported, but the Veteran wore hearing protection. The diagnosis was normal hearing/borderline mild hearing loss 250 hertz to 8000 Hertz, and overly compliant middle ear systems with normal resting pressure bilaterally. Again, the examination results showed that the Veteran did not meet the requirements of 38 C.F.R. § 3.385 for service connection purposes. At the July 2008 Board hearing, the Veteran again testified that he was in infantry while stationed in Iraq and was subjected to combat noise exposure. He also reported first noticing hearing trouble the second time he went to Iraq. Moreover, the Veteran reiterated that he currently had trouble hearing. In November 2008, the Board remanded this case so that additional pertinent VA treatment records could be obtained. Significantly, a July 2008 VA treatment record showed that word recognition was 92% in both ears. Given that the July 2008 VA treatment record showed that word recognition was 92% in both ears, the Board accepts that the medical evidence of record shows that the Veteran meets the requirements of 38 C.F.R. § 3.385 for bilateral hearing loss. After reviewing the totality of the evidence, the Board finds that service connection for bilateral hearing loss is warranted. Significantly, the Veteran was clearly exposed to combat noise while stationed in Iraq. Further, as noted at the August 2005 VA examination, a standard threshold shift did occur in both ears during service. The Veteran has also credibly testified that he has had hearing problems since service. Moreover, the Board finds it significant that the Veteran is already service-connected for tinnitus. Although hearing loss and tinnitus are separate disabilities, medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the associated hearing loss. See, e.g., Harrison's Principles of Internal Medicine 178 (Anthony S. Fauci et al. eds., 14th ed. 1998). In conclusion, when resolving the benefit of the doubt in favor of the Veteran, the Board must find that service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107(b). In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in August 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran is also seeking service connection for sleep disorder disability and right shoulder disability. In November 2008, the Board remand these issues for appropriate VA examinations. The Veteran was afforded a VA examination in January 2009. A report was completed in March 2009. However, the initial examination report did not include an etiological opinion as requested by the Board. It appears that the RO returned the claims file to the examiner so that an opinion could be obtained. Nevertheless, a June 2009 report of contact indicated that the wrong examination/results were in the file. Subsequently, another note in the file indicated that the January 2009 VA examiner provided an opinion that the Veteran's sleep apnea did begin in service. However, it does not appear that this opinion was associated with the claims file. In August 2009, the RO requested clarification of the examiner's opinion as to whether it was based on the Veteran's own history or evidence in the file. As the same examiner was no longer available, the RO requested a new examination with another examiner. An opinion was done by a urology specialist in June 2009 who determined that he could not resolve the issues without resorting to mere speculation. However, he then appeared to indicate that the Veteran developed sleep apnea during service, but could not resolve whether this was purely coincidental. Another opinion was done in August 2009 by another doctor to clarify the June 2009 opinion. Although two other opinions appeared to indicate sleep apnea was related to service, this opinion found that it was not related because there was no documentation in the service treatment records and determined that the prior two opinions were based on the Veteran's own history. There appears to have been no substantive changes with respect to the prior June 2009 opinion concerning the right shoulder. As discussed below, the Board must determine that the VA examination and subsequent opinions are insufficient for appellate review. Significantly, it does not appear that a complete copy of the January 2009 VA examination and opinion has been associated with the claims file. Further, the June 2009 opinion failed to provide any rationale or explanation for the opinions expressed except to say it could not be determined without resorting to mere speculation. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Lastly, the August 2009 opinion with respect to sleep apnea contradicts the two prior opinions because there is no documentation of any symptoms in service. However, recent Federal Circuit Court decisions have found that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence. Given the inconsistencies and the lack of detailed rational in the opinions, a new medical examination is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (holding that 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). Moreover, according to the VA examinations, a sleep study was done at the VA in February 2009, which diagnosed the Veteran with moderate to severe sleep apnea. However, a copy of this study does not appear to have been associated with the claims file. Further, as pointed out in the December 2009 informal hearing presentation by the Veteran's representative, VA treatment records from November 2008 to the present do not appear to have been associated with the claims file. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from November 2008 to the present, to specifically include the February 2009 sleep study. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Lastly, with respect to the issue of sleep disorder disability, additional lay statements have been associated with the claims file since the last supplemental statement of the case issued in September 2009. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Although the Veteran may waive preliminary RO review of the new evidence, in light of the need to remand this issue on another matter, the RO will have the opportunity to consider this evidence. The case is hereby REMANDED for the following actions: 1. Appropriate action should be taken to obtain copies of all VA treatment records from November 2008 to the present, to specifically include the February 2009 sleep study. 2. Appropriate action should be taken to obtain a complete copy of the January 2009 VA examination and all opinions expressed. 3. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of any currently manifested sleep disorder disability. The claims file must be made available to the examiner for review in connection with the examination. Any necessary sleep studies should be conducted. After examining the Veteran and reviewing the claims file, the examiner should clearly delineate all manifested sleep disorders and offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current sleep disorder disability is related to service. 4. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of any currently manifested right shoulder disability. The claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should clearly delineate all manifested right shoulder disabilities and offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current right shoulder disability is related to service. In offering this opinion, the examiner should address the December 2005 MRI done at the VA. 5. The RO should review the record, to specifically include all evidence received since the September 2009 supplemental statement of the case, and determine whether service connection is warranted for the disabilities on appeal. Unless the benefits sought are granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs