Citation Nr: 1323162 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-13 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for myofascial lumbar syndrome, claimed as back condition. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active duty from March 1976 to March 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the claims of service connection for bilateral hearing loss and tinnitus. The Veteran submitted a Notice of Disagreement (NOD) with this determination in April 2008, and perfected his appeal in April 2009. These matters also come before the Board on appeal from a July 2009 rating decision by the RO, which denied the claims of service connection for sleep apnea and myofascial lumbar syndrome. The Veteran submitted a Notice of Disagreement (NOD) with this determination in July 2009, and perfected his appeal in February 2010. The issues on appeal were previously before the Board in July 2012, at which time they were remanded in order for the Veteran to be scheduled for a Travel Board hearing. The Veteran was afforded a Travel Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge in November 2012. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of service connection for bilateral hearing loss, and myofascial lumbar syndrome 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. FINDINGS OF FACT 1. In a February 2013 statement, the Veteran indicated his desire to withdraw his appeal seeking service connection for sleep apnea. The Board received such request prior to the promulgation of a decision. 2. Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has continued at various levels of severity since that time. CONCLUSIONs OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of service connection for sleep apnea have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for Sleep Apnea Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran's representative testified at the November 2012 Travel Board hearing and submitted a subsequent statement, indicating the Veteran's desire to withdraw the issue of service connection for sleep apnea. These statements have been accepted as the Veteran's withdrawal of the Substantive Appeal as to that issue. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has withdrawn the appeal of the issue of entitlement to service connection for sleep apnea and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. As such, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for sleep apnea and it is dismissed. Service Connection for Tinnitus The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable determination here, any defect with respect to the VCAA is considered non-prejudicial. Service Connection- Applicable Laws and Regulations Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §3.102; see also 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), citing Gilbert, 1 Vet. App. at 54. Facts and Analysis The Veteran contends that he currently suffers from tinnitus due to noise exposure during active military service. Specifically, he alleges that he was exposed to loud noise from aircrafts, the flight line, and helicopters, without using the provided hearing protection. The record contains a July 2006 VA Audiological Consultation. The Veteran reported a recent onset of bilateral, constant, moderate to severe ringing since April 2006. He reported military noise exposure to aircrafts. At the November 2012 hearing, the Veteran testified that after participating in helicopter trainings, for the two days after he would experience buzzing in his ear. He reported that the hearing loss was constant, but that the buzzing would come and go. He stated that about 10 years ago his tinnitus became really bad and was a high pitched noise, but that he had the buzzing and ringing prior to that time. The Veteran was afforded a VA Audiological examination in August 2008. The examiner concluded that after review of the service medical records, personal interview, and audiometric testing, it was her opinion that the Veteran's tinnitus was less likely than not a result of noise exposure during military service. The Board finds that the negative VA opinion is not probative as it failed to give a rationale which addressed the Veteran's assertion of tinnitus in service, as well as tinnitus which continued periodically after service and increased in severity with time. The Board finds that the Veteran is competent and credible as it pertains to when his tinnitus started, and the continuation of the condition after service. In sum, the Board finds that the Veteran suffered acoustic trauma in service. In addition, the Board finds that the evidence shows that following acoustic trauma in service that the Veteran developed buzzing in his ear (i.e. tinnitus). Lastly, the evidence supports a finding that the Veteran's current tinnitus is related to the tinnitus which developed as a result of acoustic trauma in service. As stated, the noise in the ear first started in service and continued in various degrees of severity following his service discharge. Accordingly, the Board concludes that a grant of service connection for tinnitus is warranted. ORDER The appeal concerning the issue of service connection for sleep apnea is dismissed. Service connection for tinnitus is granted. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for bilateral hearing loss, and myofascial lumbar syndrome. A. Bilateral Hearing Loss The Veteran contends that he currently suffers from bilateral hearing loss due to noise exposure during active military service. Specifically, he alleges that he was exposed to loud noise from aircrafts, the flight line, and helicopters, without using the provided hearing protection. VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2012). ("[I]mpaired 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."). See id. The record contains a July 2006 VA Audiological Consultation. He reported military noise exposure to aircrafts. He also reported that the right ear drum had ruptured two times in the mid 1980's from scuba diving and from a sinus "tumor," which was surgically removed. The ear drum healed without medical intervention. Upon examination, the physician noted that the Veteran's right eardrum had a scarred appearance. The physician noted that the Veteran had mild to moderately-severe sensorineural hearing loss from 4000 to 8000 Hz, bilaterally. At this examination, the Veteran did not meet the necessary criteria to have a hearing loss disability in the left ear for the purposes of service connection. The Veteran met the necessary criteria of right ear hearing loss for VA purposes. An etiology of the Veteran's hearing loss was not given at the time of the consultation. At the November 2012 hearing, the Veteran testified that after participating in helicopter trainings, for the two days after he would experience buzzing in his ear. He reported that the hearing loss was constant, but that the buzzing would come and go. The Veteran reported post service jobs at the post office, carpet laying, and a general mechanic, all of which did not warrant him being around loud noises. The Veteran was afforded a VA Audiological examination in August 2008. Upon examination, the VA examiner diagnosed the Veteran with moderately-severe to severe high frequency sensorineural hearing loss at 6000 to 8000 Hz, bilaterally. The Veteran did not meet the necessary criteria for a hearing loss disability for VA purposes. The examiner noted that her review of the claims folder revealed audiometric thresholds within normal limits on enlistment and discharge audiograms. No other information regarding the Veteran's hearing was noted. The examiner concluded that after review of the service medical records, personal interview, and audiometric testing, it was her opinion that the Veteran's hearing loss was less likely than not a result of noise exposure during military service. The Board finds that this examination report is inadequate for rating purposes. The Board notes that the absence of in-service evidence of hearing disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385 (2012), is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. See 38 U.S.C.A. §§ 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. As noted above, the Veteran currently has right ear hearing loss as shown at the July 2006 VA Audiological Consult. Additionally, the examiner stated that she based her opinion on service medical records, personal interview, and audiometric testing. However, the Board notes that the examination report does not contain any of the facts obtained by the examiner in the personal interview, and considered by the examiner. Therefore, the Board does not know what facts in particular the examiner based her opinion on. Without further clarification, the Board is without medical expertise to determine the onset and/or etiology of the Veteran's bilateral hearing loss. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, another VA examination should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA examiner must address whether any hearing loss is otherwise related to in-service noise exposure notwithstanding the fact that hearing loss was not shown in service. B. Myofascial Lumbar Syndrome The Veteran contends that his back condition is due to in-service incidents, such as lifting airplanes, using hand-pump jacks on planes, and racing on creepers and crashing. The Veteran's service treatment records show that he first complained of back pain in September 1976 after driving over the weekend. The Veteran was sent for physical therapy. Another September 1976 record noted four days of low back pain, and a diagnosis of spasms. A September 1977 record shows that the Veteran reported that his back hurt, with no history of injury. He was diagnosed with myositis at that time. An August 1979 record also documented complaints of pain in the lumbar region, diagnosed as a strain. Lastly, a January 1980 record documented complaints of lumbar pain while lifting a motorcycle, which was aggravated when pushing an airplane. The Veteran was diagnosed with a mild lumbar strain. The January 1980 separation examination was void of any complaints or diagnosis of a back condition, and listed the Veteran's spine as normal. Post service private treatment records show that the Veteran first complained of back pain in December 1982. The Veteran specifically stated that he had the same pain two years ago after lifting a lot of heavy crates. The first post service accident was noted in November 1984. The Veteran reported that he was working under a conveyer belt in a flat position when he heard a noise that caused him to duck, and he felt his back give way and developed pain. A December 1984 record noted flare-up pain and spasms of the dorsal spine. At the February 1984 examination, the Veteran reported that he was under a conveyer belt, when he twisted his back. The Veteran was noted to have diagnoses of acute lumbo-sacral strain and acute left lumbar strain with myositis. Additionally, the Veteran experienced another injury in February 1986, when he was lifting a mail sack and hurt his back. The records show a diagnosis of severe lumbar strain with subluxation. Additionally, an August 1987 record noted that the Veteran had back pain and tightness after a car accident, where he hit a concrete pillar. At a May 1989 neurological evaluation, the Veteran reported that heavy lifting for the last month had increased an old back problem. He reported that he injured his back five years ago on the job. In a February 2010 statement, the Veteran reported that he injured his back several times while in the military and was just given pills or allowed to get a back massage to fix it. There was no real cure for his problem. He had back pain for years after leaving the military, and with the weakened state of his back, it finally gave out. He believed that this would not have happened if it did not start while he was on active duty. Additionally, the Veteran testified at the November 2012 hearing that he did not report any medical conditions at his military separation examination because he was scared it would affect his future, such as finding employment. The Veteran was afforded a VA examination in June 2009. He reported soreness in his lower back area without radiation. Upon examining the Veteran, the VA examiner diagnosed him with myofascial lumbar syndrome. The examiner concluded that after his review of the service medical records, it was his opinion that the Veteran's current myofascial lumbar syndrome was less likely than not secondary to his sprain in the service and was more likely than not secondary to the incidents the occurred after the service, as his exit Report of Medical History and his physical examination on exit showed no evidence of any back problems. Although the requested etiological opinion was provided, the examiner based his opinion solely on the fact that no disability was noted at discharge, and did not acknowledge or discuss the Veteran's lay statements discussing his reported symptoms in-service or his continuity of symptomatolgy since. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2011) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Additionally, the VA examiner failed to discuss the additional in-service diagnosis of myositis, and the initial December 1982 post-service private treatment record noting back complaints. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Therefore, a new VA examination is necessary to determine whether the Veteran's current back condition was incurred in, or is otherwise related to, the Veteran's time in service. In the examination report, the examiner must acknowledge and discuss the Veteran's report of a continuity of symptomatology. See Dalton, 21 Vet. App. at 23. Lastly, a remand is also necessary to obtain outstanding VA medical records. At the November 2012 hearing, the Veteran reported that he was currently receiving treatment at the Bay Pines VA. As any outstanding VA treatment records may contain information pertinent to his claim, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any available outstanding VA treatment records pertaining to the Veteran's back disability. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) The AMC should schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this Remand in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. All necessary tests should be performed, to include audiometric testing and Maryland CNC testing, and associated with the claims file. The examiner should state whether the Veteran currently has hearing loss pursuant to VA regulations. The VA examiner should state whether it is at least as likely as not (at least a 50-50 percent probability) that the Veteran's bilateral hearing loss (if diagnosed) had its onset in service or is related to any in-service disease, event, or injury, including acoustic trauma in service. Specifically, the VA examiner should address the Veteran's duties in-service, noise exposure in service, and any possible noise exposure post-service. The examiner should discuss the Veteran's lay statements regarding incidents of in-service noise exposure, and the onset and duration of symptoms when discussing the offered opinion. Additionally, the examiner should review and discuss the Veteran's service treatment records, private treatment record, VA treatment records (July 2006 Audiological Consultation, which noted previous ruptured ear drums), the August 2008 VA examination report, November 2012 hearing testimony, and any other relevant information in providing a rationale for the opinion given. The reviewer must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. Without discussing the Veteran's lay statements of record and his service noise exposure, the opinion will not be considered adequate. 3) Additionally, schedule the Veteran for a VA examination to determine whether any current low back disability is related to his service, to include myofascial lumbar syndrome. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this Remand in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. All necessary testing should be performed. The examiner should diagnose the Veteran's current low back disability(s). The VA examiner should then render an opinion as to whether it is at least as likely as not (at least a 50-50 probability) that any current low back disability, to include myofascial lumbar syndrome, had its onset in service or is related to any in-service disease, event, or injury, to include the September 1976, September 1977, August 1979, and January 1980 reports of low back pain and diagnoses of lumbar strain and myositis in service. The examiner should consider the Veteran's service treatment records, VA treatment records, private treatment records, lay statements, the June 2009 VA examination report, the November 2012 hearing testimony, and any other relevant information. Additionally, the examiner should discuss the Veteran's lay statements regarding the onset and duration of low back symptoms when discussing the offered opinion. Moreover, the examiner should address the post-service injuries to the back in November 1984, February 1986, and August 1987, as those noted in his private treatment records noted above. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the Veteran's lay statements concerning the onset and duration of his back symptoms are not addressed in the rationale, the opinion will be deemed to be inadequate for our adjudication purposes. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If a claim is denied, the AMC should then provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should 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). These claims 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs