Citation Nr: 1635326 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 12-04 794A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a skin disability to include a scar, residual of bug bites. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1966 to February 1969. He served in the Republic of Vietnam and received the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010, August 2011, and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In June 2016, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability, the Veteran claims that his current hearing loss is related to his service, in particular noise exposure from firing weaponry. See, e.g., the June 2016 Board hearing transcript, pgs. 25-26. The Veteran was provided a VA audiological examination for his bilateral hearing loss disability in February 2010. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with a bilateral hearing loss disability for VA evaluation purposes and concluded that it is more likely than not that the Veteran's current hearing loss is not related to his in-service noise exposure. Rather, the VA examiner opined that the Veteran's current hearing loss is related to his postservice noise exposure from working as a longshoreman for 12 years and working at Ocean Spray as a machine operator for 21 years. The examiner further noted that the Veteran's hearing tests were both normal entering and exiting service without any significant threshold shifts. He further noted that according to the Institute of Medicine, there is no research to back the claim that noise from years ago can cause hearing loss later in life. The Board finds that the VA audiological examiner's opinion is inadequate for evaluation purposes. Specifically, the Board notes that during the June 2016 Board hearing, the Veteran testified that while working as a longshoreman following discharge from service, his job duties did not involve much noise exposure. It is therefore unclear as to why the examiner determined that the Veteran's current bilateral hearing loss is in part related to the Veteran's employment as a longshoreman. Moreover, the Veteran testified that while working at Ocean Spray, he was required to wear hearing protection. Indeed, he also reported to the VA examiner that he wore ear plugs while working at Ocean Spray, and the examiner did not address the Veteran's wearing of earplugs in his rationale. The examiner also did not address the Veteran's report of a continuity of hearing loss symptoms since discharge from service. In light of the foregoing, the Board finds that an addendum opinion should be obtained as to the etiology of the Veteran's bilateral hearing loss disability which considers the Veteran's minimal noise exposure following discharge from service as well as his report of a continuity of hearing loss symptoms since service. With respect to the Veteran's claim of entitlement to service connection for sleep apnea, he contends that this disability is related to his service. Notably, at the June 2016 Board hearing, the Veteran and his wife testified that the onset of the Veteran's sleep apnea symptoms, which included snoring and difficulty breathing while sleeping, was during service. See the June 2016 Board hearing transcript, pgs. 15-19. The Board observes that the medical evidence documents current treatment for sleep apnea. See, e.g., a VA treatment record dated November 2010. Although the Veteran's service treatment records are absent complaints of or treatment for symptoms associated with sleep apnea, the Veteran and his wife have competently and credibly testified as to experiencing difficulty breathing and snoring while sleeping. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran and his wife indicated at the June 2016 Board hearing that he has had symptoms related to sleep apnea since his discharge from service. VA has not obtained a medical opinion as to whether the Veteran's sleep apnea is related to his service. Therefore, the Board finds that the evidence of record triggers VA's duty to provide an examination and obtain an opinion as to whether his sleep apnea is related to service. With regard to the Veteran's claim of entitlement to service connection for a skin disability, the Veteran contends that he has residuals of bug bites that were incurred during service in Vietnam which caused scarring and irritation to his backside, legs, feet, hands, and elbow. See the June 2016 Board hearing transcript, pgs. 30-32. The Veteran further testified at the June 2016 Board hearing that he uses a cream for treatment of the skin irritation. The Board notes that the Veteran's service treatment records as well as current medical records are absent treatment for a skin disability. Also, he was provided a VA general examination in December 2011 at which time no skin condition was identified. However, it is unclear as to whether an examination was provided at the areas identified by the Veteran which were irritated. Moreover, the Veteran is competent to testify as to receiving bug bites and having skin irritation during service. Jandreau, supra. Based on the foregoing, the Board finds that another VA examination would be probative as to whether the Veteran has a current skin disability that is a result of his service, to include from receiving bug bites. With respect to the Veteran's claim of entitlement to an increased disability rating for his PTSD, he was last afforded a VA examination for this disability in December 2011. At the June 2016 Board hearing, the Veteran indicated that this disability has since increased in severity. Specifically, he testified that he has constant panic attacks, is easily startled, and has had episodes of suicidal ideation. His wife also testified that their relationship is significantly impaired. Also, the Veteran's treating VA psychologist, J.B., Ph.D., submitted a statement dated in October 2015 indicating that the Veteran's PTSD symptoms include emotional numbness, intrusive memories, avoidance, persistent cognitive negative patterns in treatment, distrust of others, hypervigilance, mood and esteem fluctuations, difficulty with authority relations, and at times destructive peer relationships. Pertinently, the only PTSD symptoms documented by the December 2011 VA examiner were depressed mood, anxiety, chronic sleep impairment, and mild memory loss. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; see also Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. Additionally, the Veteran indicated at the June 2016 Board hearing that he continues to receive treatment from the North Chicago VA Medical Center. See the June 2016 Board hearing transcript, page 4. The Board notes that the most recent association of VA treatment records with the claims folder was in May 2013. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Finally, the Board notes that the claim of entitlement to TDIU is inextricably intertwined with the claims of entitlement to service connection for a bilateral hearing loss disability, sleep apnea, and a skin disability as well as entitlement to an increased disability rating for PTSD. In other words, development of these claims may impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Request any outstanding VA treatment records, to include treatment records from the North Chicago VA Medical Center dated after May 2013, pertaining to the claims remanded herein. All attempts to secure this evidence must be documented in the claims folder. 3. Thereafter, refer the Veteran's claims folder to a VA audiologist to address the etiology of the Veteran's current bilateral hearing loss disability. The examiner is requested to review all pertinent records associated with the claims folder, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss disability is causally or etiologically related to his service, including his credible report of noise exposure from firing weaponry. In addition, the examiner must address the Veteran's credible testimony under oath of a continuity of hearing difficulty since discharge from service, as well as his report of minimal postservice noise exposure from employment as longshoreman as well as using hearing protection during his employment as a machine operator for Ocean Spray (VBMS document labeled Hearing Testimony, receipt date 6/17/2016, pgs. 25-30). If the examiner determines that an opinion cannot be made without examination of the Veteran, such examination must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Provide the Veteran with a VA examination to determine the etiology of his sleep apnea. Any indicated tests and studies should be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner is to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current sleep apnea is related to his service, to include his credible report of having difficulty breathing and snoring while sleeping. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Provide the Veteran with a VA examination to determine the etiology of his claimed skin disability, to include residuals of big bites. Any indicated tests and studies should be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner is to provide an opinion as to the following: a. Identify whether the Veteran has a current skin disability, to include scars on his backside, legs, feet, hands, and elbows. b. If the Veteran has a current skin disability, whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current skin disability is related to his service, to include his credible report of receiving bug bites and having skin irritation. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Provide the Veteran with an appropriate VA examination to determine the current symptoms and severity of his service-connected PTSD. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims folder was reviewed. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. The examiner must also provide information concerning the functional impairment that results from the PTSD which may affect his ability to function and perform tasks in various occupational situations. 7. 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 with 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).