Citation Nr: 1509104 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 13-10 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to August 9, 2013, and in excess of 70 percent thereafter. 2. Entitlement to service connection for tinnitus, to include as due to the service-connected hearing loss disability. 3. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected PTSD disability. 4. Entitlement to service connection for vertigo, to include as secondary to the service-connected PTSD disability. 5. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from the March 2011, July 2012, and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned in a November 2014 Travel Board hearing, the transcript of which is included in Virtual VA. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of (1) an initial rating for PTSD in excess of 30 percent prior to August 9, 2013, and in excess of 70 percent thereafter; (2) service connection for sleep apnea, to include as secondary to the service-connected PTSD disability; (3) service connection for vertigo, to include as secondary to the service-connected PTSD disability; and (4) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's tinnitus is related to his service-connected hearing loss disability. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). The claim of service connection for tinnitus has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection for tinnitus), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). The condition of tinnitus is considered a chronic disease listed under 38 C.F.R. § 3.309(a) (2014) when there is evidence of acoustic trauma and the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply. See Fountain v. McDonald, ___ Vet. App., No. 13-0540 (Feb. 9, 2015). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran contends that he first experienced tinnitus during service. Alternatively, the Board finds that the evidence of record demonstrates that the Veteran's tinnitus may be related to hearing loss, for which the Veteran has been granted service connection. See April 2011 rating decision. The Board finds the Veteran has currently diagnosed tinnitus. See November 2014 Board Hearing Testimony; see also February 2011 VA examination report. In Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that tinnitus is the type of disorder associated with symptoms capable of lay observation. Based on the Veteran's assertions of ringing in his ears, the Veteran has a current disability of tinnitus. The Board notes that the AOJ has conceded that the Veteran was exposed to acoustic trauma during service. The Board also finds that the Veteran's military occupational specialty of Field Lineman is consistent with acoustic trauma. Next, the Board finds that the Veteran's tinnitus is related to his service-connected hearing loss disability. The Veteran was afforded a VA audiological examination in February 2011. During the evaluation, the Veteran reported symptoms of tinnitus and stated that they started about 10 years ago. The tinnitus was described as a constant, high-pitched hum in both ears. The examiner performed audiometric testing and diagnosed the Veteran with right ear sensorineural hearing loss. The examiner then stated that the Veteran's tinnitus was "as likely as not" a symptom associated with the hearing loss. The Board finds that this evidence weighs in favor of a finding that the Veteran's tinnitus is related to his service-connected hearing loss disability. As discussed in the remand section below, the Veteran was afforded VA audio and ear disease examinations on August 23, 2013 and August 26, 2013. These VA examinations have not been associated with the record. Nonetheless, the Board finds that the February 2011 VA examination provides sufficient evidence to grant service connection for tinnitus on a secondary basis. Further, a review of the December 2013 statement of the case demonstrates that the August 2013 VA examinations do not to address whether the Veteran's tinnitus was caused or aggravated by the service-connected hearing loss disability. Instead, it appears that these examinations discuss the etiology of the Veteran's tinnitus and vertigo as it relates to medications prescribed for the service-connected PTSD disability. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted as it is related to the service-connected hearing loss disability. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND Ratings for PTSD The Veteran was initially granted service connection for PTSD and assigned a 30 percent rating in an August 2010 rating decision. In a subsequent December 2013 supplemental statement of the case (SSOC), the RO granted a 70 percent evaluation for PTSD effective September 9, 2013, the date of the most recent VA examination. Although the RO granted a higher 70 percent disability rating for PTSD, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). Upon review of the electronic claims file, including Virtual VA and VBMS, it does not appear that the September 9, 2013 VA PTSD examination has been associated with the record. This examination report was discussed in the most recent December 2013 SSOC and served as the basis for the award of a 70 percent rating. The Board finds that, on remand, a copy of the September 2013 VA examination report should be associated with the record in order to provide the Board an opportunity to review this evidence prior to adjudication. The December 2013 SSOC also noted that VA treatment records had been reviewed from the VA Medical Center in Tampa, Florida, from November 2003 to November 2013. Additionally, VA treatment records from the Bay Pines VA Medical Center from October 2009 to September 2013 were also noted to have been reviewed. However, a review of the evidence currently of record demonstrates that most of these treatment records have not been associated with the electronic claims file. On remand, all outstanding VA treatment records should be obtained and associated with VBMS and/or Virtual VA. Moreover, the Veteran has reported that he has attended the VA Psychological, Rehab, and Research Center (PRRC) in Tampa, Florida, for his PTSD disability. An October 2014 letter from a Licensed Social Worker at the PRRC, reveals that the Veteran has been attending the PRRC since December 31, 2013. A review of the evidence currently of record does not demonstrate that these records have been obtained. As such, these documents should be requested and associated with VBMS and/or Virtual VA. Service Connection for Vertigo A December 2013 statement of the case notes that the Veteran was provided two VA examinations for audio and ear disease on August 23, 2013 and August 26, 2013. Upon review of the electronic claims file, including Virtual VA and VBMS, it does not appear that the August 2013 VA examination reports have been associated with the record. On remand, a copy of these VA examination reports should be associated with VBMS and/or Virtual VA. Service Connection for Sleep Apnea The Veteran contends that his currently diagnosed sleep apnea is either caused or aggravated by his service-connected PTSD disability. The Veteran was afforded a VA examination in April 2012. The examiner diagnosed the Veteran with obstructive sleep apnea, but opined that it was less likely than not caused by, a result of, or aggravated by the service-connected PTSD disability. In support of this opinion, the examiner noted that, according to the mainstream medical literature, obstructive sleep apnea was a disorder that was characterized by obstructive apneas and hypopneas caused by repetitive collapse of the upper airway during sleep. Definite risk factors for obstructive sleep apnea included obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Potential risk factors include heredity, smoking, nasal congestion, and diabetes. PTSD was not listed as an etiology or an aggravator of sleep apnea. In May 2012, the Veteran submitted a March 2011 medical article titled "Posttraumatic Stress Disorder, Sleep, and Breathing." This article stated that "A background of hyperarousability in patients with PTSD creates instability of sleep continuity. This instability probably contributes to the development of both obstructive sleep apnea (OSA) and central sleep apnea. In a recent study of active duty servicemen...73% of randomly selected patients with PTSD demonstrated OSA on standard polysomnography." In August 2012, the Veteran submitted a 2011 medical article titled "Military Veterans at 4-Fold Risk for Sleep Apnea." The article suggests that although there are differing opinions as to why there is such high incidence of sleep apnea among veterans, one "common" thought has been that obstructive sleep apnea "is linked with Posttraumatic Stress Disorder (PTSD), which is common among veterans who have experienced combat." In March 2013, the Veteran submitted a medical study titled "Prevalence of Sleep Disorders Among Soldiers With Combat-Related Posttraumatic Stress Disorder." Conclusions reached in the study showed that sleep complaints were almost universal among soldiers with PTSD. The majority were diagnosed with insomnia and/or obstructive sleep apnea. Further, it was noted that, while most were taking psychoactive medications that could disrupt sleep or cause somnolence, the only variable that increased the presence of sleep disorders was concomitant TBI with type of sleep disturbance differing based on mechanism of injury. In light of these medical articles submitted by the Veteran after the most recent April 2012 VA examination, the Board finds that a VA medical opinion should be obtained to assist in determining whether currently diagnosed obstructive sleep apnea is caused or aggravated by the Veteran's service-connected PTSD disability. TDIU As any decision with respect to the claims for an increased rating for PTSD and service connection for vertigo or sleep apnea may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined with the other claims now on appeal. Thus, adjudication of the TDIU claim is deferred until adjudication of the other claims. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records not currently of record, including treatment records from the VA Medical Center in Tampa, Florida from November 2003 to the present, and from the Bay Pines VA Medical Center from October 2009 to the present. 2. Obtain all treatment records from the VA Psychological, Rehab, and Research Center (PRRC) in Tampa, Florida, from December 2013 to the present. 3. Associate with the electronic claims file (VBMS and/or Virtual VA) the September 9, 2013, August 23, 2013, and August 26, 2013 VA PTSD, audio, and ear disease examination reports. 4. The AOJ should obtain a medical opinion regarding the Veteran's obstructive sleep apnea disorder (a physical examination is not required unless deemed necessary). The VBMS and Virtual VA electronic records and a copy of this remand must be made available to and reviewed by the examiner prior to completion of the medical opinion. The examiner is then asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed obstructive sleep apnea is caused or aggravated by the service-connected PTSD disability. The examiner should review and discuss the medical articles of record submitted by the Veteran and discussed in the remand section above, consisting of a March 2011 medical article titled "Posttraumatic Stress Disorder, Sleep, and Breathing."; a 2011 medical article titled "Military Veterans at 4-Fold Risk for Sleep Apnea."; and a medical study titled "Prevalence of Sleep Disorders Among Soldiers With Combat-Related Posttraumatic Stress Disorder." The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. All opinions should be accompanied by a clear rationale. If the examiner(s) cannot answer without resorting to speculation, he or she should explain why it would be speculative to respond. 5. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. 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). 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 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs