Citation Nr: 1638459	
Decision Date: 09/29/16    Archive Date: 10/13/16

DOCKET NO.  11-31 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a right knee disability.

4.  Entitlement to service connection for a left knee disability.

5.  Entitlement to service connection for a bilateral shoulder disability.

6.  Entitlement to service connection for a bilateral arm disability.

7.  Entitlement to service connection for chronic headaches.

8.  Entitlement to service connection for memory loss.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The record reflects Veteran served on active duty for training (ACDUTRA) from June 1990 to September 1990; and on active duty from September 1990 to May 1991, October 1991 to June 1992, and from July 1992 to September 1992.  He had service in the Southwest Asia Theater of Operations from November 1990 to April 1991.  Further, the record indicates he had additional service in the Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  The RO in Montgomery, Alabama, currently has jurisdiction over his VA claims folder.

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the appeal except for the hearing loss claim.  Accordingly, the other appellate claims are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The competent and credible evidence of record reflects a bilateral hearing loss disability developed while on active duty.

CONCLUSION OF LAW

The criteria for a grant of service connection for a bilateral hearing loss disability are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23)(A).  Reserves includes the National Guard.  38 U.S.C.A. § 101(26), (27).

The Board notes that there appears to have been some confusion regarding the Veteran's periods of active service, to include ACDUTRA.  For example, the June 2009 rating decision noted that he served in the Army from June 1990 to September 1990 and from October 1991 to June 1992; and the Army National Guard from September 1990 to May 1991.  However, an April 2009 response to a request for information regarding the nature of the Veteran's service reflects he served on ACDUTRA from June 1990 to September 1990; and on active duty from September 1990 to May 1991, October 1991 to June 1992, and from July 1992 to September 1992.  This response also confirmed he served in the Southwest Asia Theater of Operations form November 1990 to April 1991.  This is of particular importance regarding the resolution of the Veteran's hearing loss claim, because, as discussed below, this reflects he was first shown to have a hearing loss disability while on active duty.

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Further, the United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.  

The Board notes that the Veteran did have evidence of hearing loss pursuant to Hensley, supra, on entry to military service, but not a hearing loss disability pursuant to 38 C.F.R. § 3.385.  Specifically, audio evaluation conducted as part of the December 1988 enlistment examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
10
0
5
10
25
50
LEFT
5
5
5
19
30
55

The aforementioned results at 4000 Hertz are consistent with Hensley hearing loss.  Although the results for 6000 Hertz show decibels in excess of 40 bilaterally, this frequency is not taken into account for determining whether a hearing loss disability is present pursuant to 38 C.F.R. § 3.385.

The next audio evaluation of record appears to have been conducted in conjunction with an April 1991 re-deployment examination, and revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
15
5
5
10
65
70
LEFT
20
5
5
15
50
85

As these results reflect decibels were in excess of 40 bilaterally at 4000 Hertz, it does constitute a hearing loss disability pursuant to 38 C.F.R. § 3.385.  Moreover, the examiner's handwritten comments to this examination report noted the results indicate bilateral high frequency hearing loss, and that it was "not previously documented."  The audiogram report itself also notes the Veteran was routinely exposed to hazardous noise.

The Board further notes that another audio evaluation was conducted later in April 1991, and continue to show a hearing loss disability.  Specifically, this evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
10
5
0
10
55
80
LEFT
10
5
0
5
60
55

The Board cannot ignore the fact that the first competent medical evidence of record showing a hearing loss disability as defined by VA regulations occurred while the Veteran was on active duty.  Even if the Board were to find that the evidence of Hensley hearing loss on the December 1988 enlistment examination was a notation of a pre-existing condition, the fact that he did not satisfy the regulatory definition for an actual hearing loss disability until being on active duty would indicate evidence of aggravation.  See 38 C.F.R. § 3.306.

The Board further notes that the law mandates resolving all reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.   When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

In view of the foregoing, the Board finds the competent and credible evidence of record reflects a bilateral hearing loss disability developed while on active duty.  Therefore, service connection is warranted for this disability.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.


REMAND

The Board also notes that because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, the provisions of 38 U.S.C.A. § 1117  and 38 C.F.R. § 3.317.  Under these provisions, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317 (a)(1). 

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117 (d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317 (a)(2)(ii).

Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317 (c)(1-2).  The diseases listed in paragraph 38 C.F.R. § 3.317 (c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. 

With three exceptions, the diseases listed in 38 C.F.R. § 3.317 (c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section.  Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service.  There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. 

Further, if a veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317 (d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation.  This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease.  If a veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column "A" in that same table. 

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317 (b). 

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317 (a)(4).

In this case, the Veteran contends, in essence, that he developed recurrent sleep problems, bilateral knee pain, bilateral shoulder and arm pain, headaches, and memory loss during his active service.  The Board notes that such complaints are consistent with the type of signs or symptoms recognized as being possible manifestations of an undiagnosed illness under 38 C.F.R. § 3.317.

The Board also notes the Veteran's service treatment records reflect, in pertinent part, that he was treated for shin splints in July and August 1989.  However, it is also noted that his upper and lower extremities were clinically evaluated as normal on his April 1991 redeployment examination, and there was no indication of any sleep or headache disorder on this examination.  Granted, there is a notation indicating a final determination regarding his psychiatric condition was deferred.  Nevertheless, on a concurrent Report of Medical History, he indicated he had not experienced frequent or severe headache, painful or "trick" shoulder or elbow, "trick" or locked knee, or memory loss or amnesia.

The Veteran was accorded a VA Gulf War Guidelines examination in September 2011 regarding this case.  In pertinent part, the examination diagnosed myalgia for the muscle pain in both arms and knees; arthralgia of the knee and shoulders; chronic headache, which was indicated to be associated with a sinus problem; memory loss; sleep apnea; and allergic rhinitis.  However, it is not clear to what extent such findings constitute known clinical diagnoses; and, if so, whether they reflect medically unexplained chronic multisymptom illness(es); and/or whether such findings are etiologically linked to service.  It is also not clear to what extent his complaints of memory loss may be a symptom of the Veteran's posttraumatic stress disorder (PTSD) for which service connection has been established.  Therefore, the Board must find that this VA examination are not adequate for resolution of these appellate claims.  

Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Consequently, the Board concludes that a remand is required to accord the Veteran a new competent medical examination(s) that does adequately address the nature and etiology of his claimed disabilities.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

Accordingly, the case is REMANDED for the following action:

1.  Request the names and addresses of all medical care providers who have treated the Veteran for his sleep apnea, hearing loss, knees, shoulders, arms, headaches, and memory loss since September 2011.  Even if the Veteran does not respond, determine if there are any VA medical records for the pertinent period.

After securing any necessary release, obtain those records not on file.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of in-service and sleep, knee, shoulder, arm, headache, and/or memory loss symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination(s) to evaluate the nature and etiology of his claimed sleep apnea, right knee disability, left knee disability, bilateral shoulder disability, bilateral arm disability, headaches, and memory loss.  The claims folder should be made available to the examiner(s) for review before the examination(s).

Then examiner(s) must respond to the following inquiries:

(a) Please state whether the symptoms of any sleep, knee, shoulder, arm, headache, and/or memory loss condition are attributable to a known clinical diagnosis.  In regard to the memory loss, is it at least as likely as not this is a symptom associated with his service-connected PTSD?

(b) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service?  

Inasmuch as the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are applicable to this case, the examiner(s) should also address the following:

(c) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. 

(d) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be expressed without resort to speculation.  An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge.

4.  After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review.  If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the October 2011 SOC, and provides an opportunity to respond.  

The case should then be returned to the Board for further appellate consideration, if in order.  By this REMAND the Board intimates no opinion as to any final outcome warranted.  The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs