Citation Nr: 1336452 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-38 579 ) 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 gastroesophageal reflux disease (GERD) (also claimed as epigastric distress and gastroenteritis). 3. Entitlement to service connection for upper respiratory disorders to include chronic sinus and upper respiratory infections. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active service from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part denied entitlement to service connection for bilateral hearing loss, upper respiratory disorders to include chronic sinus and upper respiratory infections, and GERD (also claimed as epigastric distress and gastroenteritis). This matter further comes before the Board from a February 2010 rating decision in which the RO denied service connection for sleep apnea secondary to PTSD. The Veteran presented testimony at the RO at a video conference before the undersigned Veterans Law Judge (VLJ) in May 2012. A copy of the transcript of that hearing is of record. This appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board finds that further examination and opinions are needed in the adjudication of the Veteran's claims. The medical and other evidence in the file is insufficient to determine whether the currently claimed disabilities are related to military service or, in the case of sleep apnea related to his service-connected PTSD. The Veteran contends he developed hearing loss because of repeated exposure to excessively loud noise and resultant injury (acoustic trauma) due to his military duties and surroundings. He had a VA audiology examination in January 2009. The VA audiologist commented that the claims file showed no records that pertained to his hearing status while in service. However, the claims file contains records referring to his hearing status during military service including his induction and separation examination reports. In fact, in reviewing the August 1969 induction examination, there is a 30 decibel loss in the relevant 4000 Hertz frequency in the left ear which according to Hensley v Brown, is suggestive or indicative of some impaired hearing in service. See Hensley v Brown, 5 Vet. App. 155 (1993). Therefore additional comments are needed. Additionally, because the Veteran is competent even as a layman to report the onset of hearing loss, the examiner should specifically address the Veteran's report of any hearing loss in determining whether the current hearing loss is related to his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As for his claims for service connection for upper respiratory disorders to include chronic sinus and upper respiratory infections and gastrointestinal disorders, service treatment records (STRs) show that the Veteran was treated for an upper respiratory infection (in September 1969) during service. At his hearing the Veteran reported that since then, he has continuing upper respiratory and sinus problems including infections. STRs also show treatment for bouts of gastroenteritis in 1970 and 1971. At the video conference hearing, the Veteran reported that he received contemporaneous private medical care for abdominal pain and upper respiratory problems but records from the treating physicians are unavailable due to the death of the physicians. Lastly the Veteran claims that his sleep apnea is related to his service-connected PTSD. In March 2012, along with his substantive appeal, he submitted a medical article that pertains to the relationship between PTSD and sleep apnea. He has also testified as to how his PTSD affects his ability to sleep. Based on the foregoing, the Board finds that VA examinations and opinions are needed in the adjudication of the claims in this case. When determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner that performed the January 2009 audiology compensation evaluation of the Veteran, if still available, and ask that the examiner submit an addendum statement concerning the likelihood (very likely, as likely as not, or unlikely) the hearing loss was incurred in or aggravated (permanently worsened) by the Veteran's active military service. If that examiner is unavailable, the Veteran should be afforded a new VA audiology examination. In making this determination of causation, the examiner is requested to address the evidence of some impaired hearing loss in the left ear on induction examination in August 1969 (30 decibel loss at 4000 Hertz in the left ear). With respect to this finding, the examiner should indicate: (a) whether any preexisting hearing impairment in the left ear on induction increased in severity in service, and if so, (b) whether there is clear and unmistakable evidence (obvious or manifest) that such increase was due to the natural progression of the disorder. As the Veteran is competent even as a layman to report the onset of hearing loss while in service, the examiner must specifically address his report of any manifestation during his service and continuance since, in determining whether his hearing loss was incurred in service. In providing answers to the above questions, the examiner is advised that she cannot rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. §3.385, at the time of separation from service, as the basis for any opinion provided because doing so would render the opinion inadequate. See Hensley v. Brown, 5 Vet. App. 155 (1993); also see Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). 2. Schedule appropriate VA compensation examination(s) to determine the current diagnoses and etiology of the Veteran's sleep apnea, upper respiratory disorders to include chronic sinus and upper respiratory infections and gastrointestinal disorder. The examiner is requested to respond to the following: (a) indicate the likelihood (very likely, as likely as not, or unlikely) that the Veteran's upper respiratory disorders to include chronic sinus and upper respiratory infections, and/or any currently diagnosed gastrointestinal disorder to include GERD if so diagnosed, had its onset in or is otherwise etiologically related to the Veteran's military service; (b) indicate the likelihood (very likely, as likely as not, or unlikely) that the Veteran's sleep apnea had its onset in or is otherwise etiologically related to the Veteran's military service, or is proximately due to, or alternatively aggravated (permanently worsened) by, the Veteran's service-connected PTSD. In making these necessary determinations, the examiner(s) should comment on the Veteran's treatment during service for gastroenteritis and upper respiratory infection as well as any statements he has made in terms of continuing symptoms since service. A complete rationale for any opinion expressed must be provided. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 3. Thereafter, the RO should readjudicate the issues in appellate status. If the benefits sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and an opportunity to respond. The Veteran 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). _________________________________________________ S. L. Kennedy 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).