Citation Nr: 1607711 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 14-23 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral knee disability, including degenerative joint disease (DJD) and cartilage injury. 4. Entitlement to service connection for injury to shoulders, arms, wrists, and hands. 5. Entitlement to service connection for eye damage to include floaters. 6. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) with anger issues. 7. Entitlement to service connection for heat stroke due to Gulf War illness. 8. Entitlement to service connection for breathing difficulties, claimed as bronchitis, due to Gulf War illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had service with the Air Force Reserve on Active Duty for Training (ACDUTRA) from May 1986 to March 1987, and was later recalled to active duty from February 1991 to May 1991, June 2002 to October 2002, and February 2003 to September 2003. He remained with the Air Force Reserve until 2011. This case is before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claim for service connection for the bilateral knee disability has been updated to reflect additional diagnosed current disorders. The issues of service connection for knee disability, upper extremities disability, eye damage, breathing difficulties, and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran had mild diminished hearing acuity at the 1000 Hz level on service entrance, with some mild sensorineural hearing loss intermittently. Bilateral hearing loss while not clearly present until more than one-year after the Veteran's last period of active duty, still was roughly coincidental with continued noise exposure in reserve duty as member of a C-130 flight crew. 2. There has been continuous tinnitus that is as likely as not related to service. 3. The Veteran does not currently have residuals of heat stroke. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.385 (2015). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2015). 3. The criteria are not met for service connection for heat stroke. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.317 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) provides VA's duties to notify and assist a claimant with development of a claim for compensation. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. As to service connection for hearing loss and tinnitus, given the grant of benefits there is no need to consider VCAA compliance. On the claim being denied, the Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA's duty to assist has been fulfilled through obtaining extensive service treatment records (STRs), service personnel records, and post-service VA medical records, along with scheduling VA Compensation and Pension examinations. The Veteran himself provided several lay statements and additional medical records. There is sufficient basis upon which to issue a decision. General Law on Claims for Service Connection Service connection may be granted for disability from injury or disease that was incurred in or aggravated during active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while on ACDUTRA, or for injury incurred in or aggravated while on inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106; 38 C.F.R. § 3.6. Basic requirements for service connection are (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) causal relationship between the disability and service. See generally, Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there was chronic disease diagnosed in service, later episodes are service-connected unless clearly refuted. For non-chronic disease noted in service, continuity of symptomatology from the time of service discharge is required. See 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limited continuity of symptomatology as a principle to those specific diseases for which presumptive service connection is available under 38 C.F.R. § 3.309(a)). Certain disorders, to include sensorineural hearing loss and tinnitus, will be presumed to have been incurred in service if shown to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is another form of presumptive service connection applicable to Persian Gulf veterans. Under 38 U.S.C.A. § 1117, a qualifying chronic disability that has developed to a degree of 10 percent or more is presumed service-connected in a Persian Gulf veteran, where by history, physical, examination, and laboratory tests the condition cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" refers to a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). Claims Being Decided A. Bilateral Hearing Loss The Veteran presently has actual bilateral hearing loss (defined for VA purposes) verified on February 2012 VA examination. Current disability is proven. The Veteran also competently alleges in-service noise exposure. He worked in close proximity to and aboard military aircraft for several years, including in several locations overseas, and the Board is well aware of the noise risk. An in-service injury, by acoustic trauma, occurred. The final criterion to grant the claim, is the third main element -- that hearing loss is directly due to military service. This is the requirement of a "causal nexus" to service. Initially, here, there are some limitations to the claim posed by the medical evidence. The Veteran is by no means limited from alleging a causal nexus between his service and hearing loss; yet medical and scientific expert opinion often best answers the issue of nexus, given its complexity, and here VA's only opinion actually weighs against the claim. The February 2012 VA audiological examiner was convinced after a thorough record review, the Veteran's own assertions included, that hearing loss was not related to service. The examiner cited that on service entrance in 1985 there was already mild hearing loss (30db at 1000 Hz) in the right ear. (Technically, the requirements for VA "hearing loss disability" under 38 C.F.R. § 3.385 were not met at service entrance, so the Veteran is still presumed to have been in sound condition upon induction.) However, on repeated audiograms (10 or so studies over time) the problem never became worse. The examiner indicated it was not until February 2005 that there was finally demonstrated some worsening, but by this time the Veteran had not been on active duty for more than a year. The actual onset of hearing loss was estimated sometime between 2005 and 2012. The examiner further considered the Veteran's hearing loss age-related, citing that hearing loss was symmetric (i.e., the same in both ears). On its face the opinion appears sound, but ultimately it cannot determine the claim's outcome based on the totality of the evidence. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may evaluate probative value of medical opinion). Rather, the Board has taken a more long-term view of the medical evidence. The Board cites, in part, that on two of the very same in-service audiograms the February 2012 VA examiner considered, and correctly observed were not worse than the 1985 study, the military audiologist still noted "mild sensorineural hearing loss." The judgment of those audiologists should not be second-guessed. Still more convincing is the timing of the VA examiner's own diagnosis -- somewhere between 2005 and 2012, most likely onset in February 2005 (established by review audiogram) -- this, during which, the Veteran had regular INACDUTRA as a flight crew member aboard a C130. This fact is verified by military personnel evaluations, and periodic medical records. Certainly, his continuing acoustic trauma cannot be pinpointed to any one particular session of INACDUTRA. That said, taking this all together, his long-term USAF reserve career around aircraft, notations of hearing loss in service, and the timing of diagnosis, there is a basis to support the claim despite the VA examiner's opinion. There was ongoing progression of hearing loss that was coincident enough with service. Not to mention, the February 2005 abnormal audiogram was very close to the last period of active duty. The benefit-of-the-doubt doctrine applies when the preponderance of the evidence is favorable. Considering all of the relevant evidence and affording the Veteran the benefit of the doubt, the claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Tinnitus As an organic disease of the nervous system, like hearing loss, tinnitus is subject to presumptive service connection as a chronic disorder. See 38 C.F.R. §§ 3.307, 3.309(a). In this instance, the February 2012 VA audiological examiner opinion had ruled out a relationship to service, finding no complaints of tinnitus within the STRs. However, STRs show February 2004 in-service Hearing Conservation Examination response indicating "ringing in the ears," even if taken following active duty, this was well within one-year. These symptoms are close to, if not exactly a definite diagnosis of tinnitus. The Veteran now further competently reports constant tinnitus since noise exposure in military service, even if at some points along the way he did not indicate to medical providers having had this condition. The Board is again mindful that when there is reasonable doubt on a material issue that the determination is made in the claimant's favor, and so, the claim is granted. C. Heat Stroke Reviewing the Veteran's claim for service connection for heat stroke and residuals of this condition, the claim must be denied because there is no current disability. There is no immediate documentation in STRs the Veteran has or ever has had heat stroke. The Veteran himself describes extreme heat exposure on service including over several overseas deployments. By his account, he may have had dehydration, but did not require IV fluids. The Board will take him at his word that he had severe heat exposure. Still, there must be a current disability resulting from that incident. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability.") The Veteran had contended in recent layperson statements that he had memory problems, insomnia and headaches as residuals of heat stroke. However, on 2014 VA examination these residuals were denied, the examiner did not independently observe them either, and the Veteran did not have any other heat-related symptoms or activity limitations. The one issue that was mentioned was of muscle cramps from intense lifting/carrying activities in the heat. Yet the VA examiner observed that there was no prior record or recent sign of muscle injury or rhabdomyolysis. There is no other record elsewhere of current symptoms or conditions that are commonly associated with heat stroke. Some symptoms of those the Veteran has reported (headaches, insomnia) he has otherwise attributed to chronic fatigue syndrome and/or fibromyalgia, distinct conditions (and independently referred back for original adjudication). In sum, the Board has no indication that the Veteran has diagnosable and lasting residuals from heat stroke in service. To the extent the Veteran claims he has heat stroke residuals that are associated with Gulf War service, this does not warrant further consideration because he still does not have the actual disability. In any event, heat stroke is a known clinical condition, while presumptive service connection based on Gulf War undiagnosed illness is limited to chronic symptoms without clear origin. Since the preponderance of the evidence is unfavorable, and the claim is being denied. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for heat stroke due to Gulf War illness is denied. REMAND On his June 2014 VA Form 9 (Substantive Appeal), the Veteran indicated have received recent private mental health counseling at a University clinic, and private treatment and "urgent care" for claimed breathing difficulties, records of which should be obtained. The Board will order medical opinions and re-examination where necessary on the remaining claims. The April 2012 VA examiner for the DJD knees would not comment on whether there was a direct relationship to service, because "there is no verification of injury pattern or treatment evidence in STR review." Keeping in mind that the Veteran's extensive personally reported knee injuries may be sufficient to support an opinion, the Board finds a reasoned opinion still possible, and will send this case to a new examiner. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Veteran's claim for service connection for an upper extremity disability (shoulders, arms, wrists and hands) needs to be explored through VA examination, as on May 2014 Gulf War exam he reported bilateral shoulder pains related to heavy lifting in service. He also needs an original VA examination with respect to claimed visual disorder, which he claims began in service and became particularly problematic after gas mask training which he alleges brought upon eye floaters. Finally, re-examination for a psychiatric disorder, particularly for claimed PTSD, is required based on the Veteran's numerous recently provided PTSD stressor statements, which while not directly stating current mental health symptoms, can still have a bearing on the diagnosis reached. Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient records, and associate them with the Veterans Benefits Management System (VBMS) electronic file. 2. Contact the Veteran and request completion of a medical authorization and release (VA Form 21-4142) for records of mental health counseling at a University clinic; and private treatment and "urgent care" for claimed breathing difficulties. If these identified non-Federal records are determined to be unavailable, document and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for VA orthopedic type examination with regard to his claimed bilateral knee and upper extremity disorders. The VBMS and Virtual VA electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. For each diagnosed knee condition (including DJD, and cartilaginous injury), the examiner should opine whether the disorder at least as likely as not (50 percent or greater probability) was incurred during military service, having considered both the Veteran's assertions of reported extensive in-service knee injury (see statement of November 2012 and June 2014 VA Form 9) and service documentation. Indicate review of the prior April 2012 examination of the lower extremities. The examiner should also diagnose all current conditions of upper extremities (shoulders, arms, wrists and hands). Opinion is requested as to whether all conditions diagnosed are at least as likely as not etiologically related to service. Review is requested of the May 2014 Gulf War protocol exam during which the Veteran reported bilateral should pain related to heavy lifting in service. The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 4. Schedule the Veteran for an eye examination. The VBMS and Virtual VA electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Initial examination should determine whether the Veteran has the condition of eye floaters, and/or exophoria, or any other present visual disorder. For each diagnosed condition (other than just diminished visual acuity), the examiner should opine whether the disorder at least as likely as not (50 percent or greater probability) was incurred during military service, considering in-service documentation and the Veteran's description of symptoms following a 2010 gas mask training exercise. The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 5. Also schedule the Veteran for a psychiatric examination. The VBMS and Virtual VA electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should determine whether the Veteran has a current psychiatric condition, including PTSD. As to whether the Veteran has PTSD, the examiner is requested to consider the Veteran's recent updated stressor statements of December 2014, along with the January 2012 prior VA examination report. Then if PTSD is diagnosed, the examiner should opine whether the disorder at least as likely as not (50 percent or greater probability) is due to a verified in-service stressor -- and/or any incident that has not been independently verified, but which is directly related to the Veteran's fear of hostile military or terrorist activity (per 38 C.F.R. § 3.304(f)(3)). For any other diagnosed mental health disorder, also opine whether it is etiologically related to service. The examiner should include in the examination report an explanation for all opinions. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 6. If there is reasonable likelihood that the Veteran does have a confirmed diagnosis of PTSD, but further development is necessary to independently corroborate any claimed stressor (to include records request with the Joint Services Records Research Center (JSRRC)) then take the proper steps to do so. 7. Then readjudicate the claims on appeal based upon all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs