Citation Nr: 1315423 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-38 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from December 1972 to June 1975. He was additionally a member of the Air National Guard, with periods of Federal active duty from February 1991 to September 1991, February 2003 to April 2004, and October 2004 to May 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and October 2011 rating decisions by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The December 2008 decision in pertinent part granted service connection for PTSD, rated 30 percent effective from May 30, 2008, and denied service connection for right ear hearing loss. In the October 2011 decision, service connection for sleep apnea was denied; this decision was reconsidered in a March 2012 rating decision, and the denial was continued. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. The October 2011 and March 2012 rating decisions are in fact part of this electronic record. The Board notes that the RO accepted an October 2009 communication from the Veteran as a notice of disagreement (NOD) with the October 2008 grant of service connection and an initial 0 percent evaluation for left ear hearing loss. A statement of the case (SOC) was issued in March 2010. However, as per the evidence in the physical claims file and the Virtual VA electronic file, the Veteran failed to perfect this appeal within the applicable 60 day time limit, and hence the matter is not considered to be on appeal. 38 C.F.R. § 20.302. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU in not inferred here, as the Veteran reportedly continues to work. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims, and for procedural due process. 38 U.S.C.A. §§ 5103A, 7105; 38 C.F.R. §§ 3.159, 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). A review of the electronic claims file contained in the Virtual VA system reveals that in connection with the October 2011 and March 2012 rating decisions, updated VA treatment records were considered. The actual records have not been associated with the file; the RO indicated they were reviewed electronically. As the Board cannot view them, and no determination can be made as to their relevance to the current appeals. Relevance must therefore be assumed. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Remand is required to associate complete update VA treatment records, from June 2010 to the present, with the claims file. The October 2011 and March 2012 rating decisions also discuss additional items of evidence, including articles, buddy statements, and private medical records. None of these items are available for the Board's review; they may be contained in a temporary file kept at the RO. All such records must be associated with the Veteran's permanent file to facilitate their review on appeal. Additionally, the scheduling of VA examinations is necessary. The most recent examination in connection with the PSTD claim was performed in July 2010. Since that time the Veteran's wife has submitted several statements indicating a worsening of the Veteran's psychiatric symptoms. She refers to more frequent panic attacks, for example, and both she and the Veteran discuss a magnified impact on his daily functioning. In light of the passage of time since the last examination and the allegations of worsening, an updated PTSD examination is warranted on remand. With regard to right ear hearing loss, service treatment records document a May 1972 examination for entrance onto active duty which shows some right ear hearing loss. The puretone threshold level at 2000 Hertz was 45 decibels, and at 4000 Hertz it was 40. A right ear hearing disability therefore pre-existed service. 38 C.F.R. § 3.385. In such cases, the proper inquiry is whether that pre-existing disability was then aggravated by service. 38 C.F.R. § 3.306. If there is an increase in disability during service, aggravation is presumed unless shown by clear and unmistakable evidence to be due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.304. Here, no increase in disability is documented in the service treatment records. Although the Veteran did complain of hearing problems in service, these were related to reports of tinnitus and accompanying dizziness, as shown by in-service consultation notes and summary entries at separation. However, the Veteran has provided lay testimony throughout the course of the appeal that his service affected his hearing acuity separate and apart from tinnitus. The Veteran has the opportunity to establish a rebuttable presumption of aggravation by providing the kind of evidence one engaged in combat or held as a prisoner of war is most likely to have available, lay testimony or other informal evidence of symptomatic manifestations, whether temporary or otherwise, of incurrence or aggravation. Once this showing has been made, the government has the burden to rebut by clear and convincing proof that there has been no increase in the severity of the preexisting condition, thereby establishing lack of a statutory requirement, or that any increase was the result of natural progression. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The RO determined in the December 2008 decision on appeal that because the right ear hearing loss never became compensable, there was no aggravation. This is the incorrect standard. Hearing may grow worse without ever changing assigned evaluations, and regardless of whether actual worsening was shown in service, aggravation may be shown based on delayed onset worsening. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The July 2008 VA examiner failed to consider the possibility of aggravation of a pre-existing hearing loss by service; he appears to not have even noted that the condition was present at entry. The offered medical opinion stated simply that it was at least as likely as not current hearing loss was due to in-service noise exposure as a vehicle operator, and from aircraft and combat noise. A remand is required for an informed medical opinion regarding any aggravation of the pre-existing right ear hearing loss by service. Finally, in October 2011 and March 2012 rating decisions the RO denied service connection for sleep apnea, which the Veteran alleges is related to exposure to smoke from burn pits in Southwest Asia. In June 2012 correspondence to Congress, the Veteran and his wife expressed their disagreement with this determination. The NOD was timely, as it was received within one year of the adverse decision. 38 C.F.R. § 20.302. Review of the physical and electronic claims files does not indicate that any further action has been taken with respect to the claim of service connection for sleep apnea. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete treatment records from the VA medical center in Oklahoma City, Oklahoma, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of June 2010 to the present. 2. After completion of directive 1, above, schedule the Veteran for a VA PTSD review examination. The examiner must describe in detail the signs and symptoms of service-connected PTSD and associated depression, to include discussion of such on the Veteran's daily functioning in social, occupational, and scholastic tasks, as applicable. 3. After completion of directive 1, above, schedule the Veteran for a VA audio examination. The claims folder must be reviewed in conjunction with the examination. The examiner must be informed that a right ear hearing loss is shown to have existed prior to entry onto active duty, and that exposure to excessive noise on active duty is also demonstrated. Service connection for left ear hearing loss and tinnitus is established. The examiner must opine as to whether there is clear and convincing proof that there was no increase in the severity of the preexisting right ear hearing loss. If such increase is found, the examiner must opine whether there is clear and convincing proof that any such increase was the result of the natural progression of the hearing loss. A full and complete explanation for all opinions expressed is required. 4. Issue a statement of the case regarding the issue of service connection for sleep apnea and advise the Veteran of the procedural requirements to continue an appeal of that issue. If a substantive appeal is timely filed, the issue should be certified to the Board. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).