Citation Nr: 1752879 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-34 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a neck condition. 4. Entitlement to service connection for a gastrointestinal condition to include gastroesophageal reflux disease (GERD), gastritis and fatty liver disease. 5. Entitlement to service connection for sinusitis. 6. Entitlement to service connection for a bilateral shoulder condition. 7. Entitlement to service connection for a bilateral elbow condition. 8. Entitlement to service connection for a wrist condition. 9. Entitlement to service connection for a bilateral knee condition. 10. Entitlement to service connection for a low back condition. 11. Entitlement to service connection for chronic allergic rhinitis. 12. Entitlement to service connection for chronic bronchitis. 13. Entitlement to service connection for chronic ear infections. 14. Entitlement to service connection for chronic tonsillitis, residuals of tonsillitis, residuals of uvulectomy. REPRESENTATION Veteran represented by: Maryland Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Veteran and his friend ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to November 1975 with the U.S. Navy. The Veteran served with the Army National Guard, to include periods of active duty training (ACDUTRA) from July 1983 to May 1984, September 1988 to December 1988, February 1991 to March 1991 and July 1996 to August 1996. The Veteran has additional Army Reserve service and retired in October 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 2010 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer in February 2014. The Veteran testified before the Board at an April 2017 hearing in front of the undersigned. Transcripts of the hearings are of record. The issues of service connection for chronic bronchitis, allergic rhinitis, residuals of chronic tonsillitis and chronic ear infections denied in the June 2016 RO rating decision were appealed by the Veteran in a July 2016 notice of disagreement. However, a statement of the case has not been issued and the matters have not been certified to the Board. Therefore, the Board does not have jurisdiction over the issues, and they will be REMANDED to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for a bilateral shoulder, bilateral elbow, bilateral wrist, bilateral knee, low back, gastrointestinal and sinusitis conditions are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, sleep apnea had its onset during active duty service. 2. Resolving reasonable doubt in favor of the Veteran, right ear hearing loss disability is etiologically related to active duty service, including periods of ACDUTRA and inactive duty for training (INACDUTRA). 3. Resolving reasonable doubt in favor of the Veteran, a neck disability is etiologically related to periods of ACDUTRA/INACDUTRA service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017). 2. The criteria for establishing service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for service connection for a neck disability have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal criteria In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. ACDUTRA includes full-time duty performed by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA includes part-time duty by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Sleep apnea The Veteran is seeking service connection for sleep apnea. For the purposes of this decision, the Veteran's pertinent assertion is that he developed symptoms of sleep apnea during his initial period of service and symptoms have continued since. The Veteran's service treatment records (STRs) do not show any in-service report or diagnosis of sleep apnea. The condition was diagnosed in 2012, years after his initial separation from service in 1975 and subsequent periods of ACDUTRA. However, the Veteran has provided competent and credible reports that he has experienced symptoms of poor sleep, daytime lethargy, and abrupt awakenings with shortness of breath and snoring since his first period of active service in 1973. Initially, bunk mates informed him of his snoring, and later his wife. See e.g., November 2011 buddy and lay statements from Veteran and his wife, April 2017 Board hearing, pg. 48-49 of 60 and May 2017 private medical opinion. Positive nexus opinions have been provided by three private physicians from September 2011, September 4, 2013 and September 30, 2013. See e.g., medical opinions dated in VBMS as November 1, 2011 (Dr. A) and July 29, 2014 (Dr. W. and Dr. F). Additionally, a May 2017 private medical opinion opined that the Veteran's tonsillitis, a currently non-service connected condition, likely onset in 1972 and that the Veteran's sleep apnea was at least likely as not related to this condition, citing the Veteran's in-service complaints of symptoms noted above. In contrast, negative nexus opinions were provided by two VA examiners in a July 2013 addendum to an October 2011 VA examination and March 2015 VA opinion. However, the March 2015 VA medical opinion did not adequately consider the Veteran's lay statements of ongoing symptoms since service. In light of the credible lay evidence, medical nexus opinions resulting in at least relative equipoise and resolving any reasonable doubt in favor of the Veteran, the Board finds that the claim of entitlement to service connection is granted. Right ear hearing loss The Veteran asserts service connection for right ear hearing loss disability as due to in-service noise exposure as a helicopter pilot during active service. A review of the record shows that the Veteran served initially as a radio service operator from October 1972 to November 1975. Thereafter, he served as a pilot during National Guard with ACDUTRA aviation training beginning in 1983 with multiple active and inactive training periods thereafter. Service connection has already been established on the basis of acoustic trauma for his left ear and tinnitus in the December 2010 RO rating decision. As such, in-service noise exposure is established. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies from 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 2000, 3000 or 4000 Hertz are 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. During the appeal period, evidence establishes a current right ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385, despite the negative August 2010 VA examination results. In this regard, the Veteran submitted private audiometric test results showing hearing acuity in the right ear of 40dB at 4000Hz in February 2010 and 50dB at 4000Hz in April 2017. See private treatment records dated May 10, 2010, pg. 4 of 18 and April 12, 2017. STRs do not show hearing loss disability for VA purposes, despite ongoing audiological testing. However, the August 2010 VA examiner provided a positive nexus opinion and detailed that there was evidence of hearing loss at 6000 Hz in examinations as early as April 1977 (in the right ear only) and April 1982 (bilaterally). See STR records dated November 25, 2013, pg. 36 of 81 and pg. 25 of 39. There is no contrary medical opinion of record. Thus, service connection for right ear hearing loss disability is warranted. Neck The Veteran asserts service connection for a neck condition, primarily due to service as a helicopter pilot with the National Guard for over 20 years. The Veteran has a current diagnosis of a neck condition, summarized as cervical disc disease which includes degenerative changes with bilateral foraminal stenosis in a July 2013 private medical opinion, based on private 2011 MRI results (Dr. A.). Specifically, the Veteran reports that neck pain and fatigue onset due to helicopter flight hours conducted during periods of ACDUTRA/INACDUTRA. He has detailed specific trainings with jarring flights that resulted in neck pain. While conducting helicopter flights, he had to sit in an armored seat, enure vibrations from the helicopter itself, and long shifts (some lasting 10 hours). He underwent strenuous night vision goggle training which required him to wear heavy equipment, including a helmet. After returning home from a 1993 annual training, he sought neck pain treatment from a private surgeon. Although he was unable to obtain the records, the surgeon told him that his neck pain was a common occurrence among aviators. They discussed the impact of helicopter vibrations, sitting in armored seats, prolonged sitting and lack of water during shifts. He was treated with ibuprofen. His neck pain continued during additional helicopter flight duties and after being moved to C-12 airplanes (fixed wing) beyond 1996 to 1999, as the duration of flights increased. See Veteran's statement dated October 25, 2011, private treatment records dated October 4, 1013 (Dr. K) and May 10, 2010 (Dr. W) and April 2017 Board hearing transcript. Military records support the Veteran's contentions of an in-service injury as they confirm the Veteran's National Guard pilot service beginning in 1983, with a significant amount of flight hours. For example, by November 1988, the Veteran reported having over 1200 helicopter flight hours, including vision goggle training and approximately 500 civilian flight hours. See STRs dated November 25, 2013, pg. 1 of 81. Of note, the Veteran has been employed as a commercial airline pilot since approximately 1989. See August 2010 VA examination. STRs fail to show any diagnosis or complaints of a chronic neck condition, despite multiple examinations. In an August 2000 Reserve examination prior to retirement in 2001, the Veteran had a normal spine, musculoskeletal. In the associated report of medical history, the Veteran denied any swollen or painful joints. See STRs dated April 30, 1999. The first documented evidence of record indicating a diagnosis of a chronic neck condition is from September 2004. See private treatment records dated February 24, 2011. As indicated by the Veteran, private treatment records from 1993 of reported neck pain treatment were unavailable, though the hospital confirmed that he received treatment from 1993 with no further details. See correspondence dated April 23, 2010. Positive nexus opinions between the Veteran's current neck condition and military service have been provided by four private physicians. See e.g., medical opinions dated July 30, 2013 (Dr. N., Dr. A., Dr. K. and Dr. F). There is no contrary medical opinion of record. Additionally, the Board finds the Veteran's report of neck pain and continuing symptoms are competent and credible, as they are generally consistent with the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the credible lay evidence, competent nexus opinions in support of the claim and resolving any reasonable doubt in favor of the Veteran, the Board finds that the claim of entitlement to service connection is granted. ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for right ear hearing loss disability is granted. Entitlement to service connection for a neck disability is granted. REMAND For the reasons identified immediately below, the Board finds that a VA addendum opinion is required for his claimed sinusitis and VA examinations are required for the Veteran's claimed bilateral shoulder, elbow, wrist, knee, low back and gastrointestinal conditions. The Veteran was diagnosed with sinusitis in a May 2016 VA examination, with a diagnosis date of 2008. The Veteran submitted a January 2011 private medical opinion which indicates an earlier onset date of 1998. The Veteran asserts that sinusitis symptoms onset during his first period of active duty, as shown by STRs documenting upper respiratory, tonsil and ear complaints beginning in December 1972 and have continued since. Additionally, the Veteran asserts the condition is interrelated with his sleep apnea and/or his non service-connected tonsillitis condition, a matter currently referred to the AOJ for appropriate action, including the issuance of a SOC. The Veteran claims that gastrointestinal symptoms onset during service in 1972, worsened during his 1983 ACDUTRA period and have continued since. He believes the condition is due to stress, eating too quickly and eating greasy food during his 1983 pilot training period. See April 2017 Board hearing transcript and statement dated April 27, 2010. The record indicates gastrointestinal conditions such as a fatty liver, gastritis, esophagitis and duodenitis and gastroesophageal reflux disease (GERD). See private treatment records dated May 11, 2010 (Dr. Y.). The Veteran asserts bilateral shoulder, elbow and wrist conditions are due to immunizations conducted prior to his February 1991 ACDUTRA period and/or duties as a pilot with the National Guard. The Veteran testified that a physician informed him of possible right arm arthritis. See e.g., April 2017 Board hearing transcript. The Veteran reports that a low back condition was incurred due to his helicopter pilot duties with the National Guard and Reserve. The Veteran has submitted multiple articles to support his contentions and records reflect treatment of lumbar paraspinal spasms from June 27, 2005. See documents dated in VBMS as April 5, 2010, April 7, 2011, April 27, 2010 and May 20, 2010 and private treatment records dated April 27, 2010, pg. 33 of 53. The Veteran asserts that his bilateral knee condition, diagnosed as arthritis, is due to active service including subsequent ACDUTRA and INACDUTRA periods from physical training and/or knee injuries. He reports knee injuries from his first period of active duty, as shown by a documented December 1972 right knee injury and a bilateral 1973 knee injury which he did not report. Thereafter, he aggravated his knees in 1982 while in school and his knees continued to be aggravated by subsequent periods of ACDUTRA/INACDUTRA. He also reports a significant amount of running in military boots, including during active service, initial pilot training and continued physical conditioning to meet the physical requirements of the position. Notably, the Veteran submitted a private medical opinion from April 2011 which suggests a possible relationship between the Veteran's military service and his current condition. Accordingly, the case is REMANDED for the following action: 1. Issue a SOC with the issues of entitlement to service connection for chronic allergic rhinitis, chronic bronchitis, chronic ear infections, and chronic tonsillitis, residuals of tonsillitis, residuals of uvulectomy. 2. After the development above has been completed, obtain an addendum to the May 2016 VA ear, nose and throat examination. Provide the claims file to a VA examiner who has sufficient expertise to address the likely etiology of the Veteran's claimed sinusitis. Based on a review of the claims file, including the medical and lay evidence of record, the examiner should offer an opinion in response to the following: (a) Is it at least as likely as not (50% or more) that the Veteran's sinusitis onset during, was aggravated (beyond the natural progression of the condition) or otherwise related to his military service, including ACDUTRA and/or INACDUTRA periods of service as a pilot? It should be noted that the Veteran served from 1975 to 2001 in the Army National Guard/Reserve, which typically means one weekend per month, and two weeks per year of ACDUTRA/INACDUTRA service. (b) Is it at least as likely as not (50% or more) that the Veteran's sinusitis is caused or aggravated (beyond the natural progression) by his service-connected sleep apnea? (c) Is it at least as likely as not (50% or more) that the Veteran's sinusitis is caused or aggravated (beyond the natural progression) by his tonsil disorder? The examiner must provide a complete rationale and address any conflicting evidence of record. 3. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed gastrointestinal condition(s). All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Clarify all current gastrointestinal condition diagnoses to include GERD, esophagitis, duodenitis, gastritis and fatty liver that have existed during the appeal period (beginning November 2008). Thereafter, opine whether it is at least as likely as not (50% or more) that any gastrointestinal condition is caused or aggravated (beyond the natural progression) by his periods of active duty, including ACDUTRA and/or INDACTRA, including as due to stress or poor eating habits. It should be noted that the Veteran served from 1975 to 2001 in the Army National Guard/Reserve, which typically means one weekend per month, and two weeks per year of ACDUTRA/INACDUTRA service. The examiner must provide a complete rationale and address any conflicting evidence of record. 4. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his claimed bilateral shoulder, bilateral elbow, bilateral wrist, bilateral knee and low back conditions. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. (a) Bilateral shoulder, elbow, and wrist conditions: Identify all current diagnoses to include left shoulder impingement, left elbow lateral epicondylitis and left extensor tendinopathy that have existed during the appeal period (beginning November 2008). Thereafter, opine whether it is at least as likely as not (50% or more) that any identified condition, onset during, was aggravated (beyond the natural progression) or is otherwise related to his ACDUTRA/INACDUTRA periods of service as a pilot, including the impact of any immunizations. It should be noted that the Veteran served from 1975 to 2001 in the Army National Guard/Reserve, which typically means one weekend per month, and two weeks per year of ACDUTRA/INACDUTRA service. (b) Bilateral knee condition: Opine whether it is at least as likely as not (50% or more) that any bilateral knee condition onset during, was aggravated (beyond the natural progression) or is otherwise related to his active duty, ACDUTRA or INACDUTRA periods, considering the impact of his claimed in-service injuries and physical training. It should be noted that the Veteran served from 1975 to 2001 in the Army National Guard/Reserve, which typically means one weekend per month, and two weeks per year of ACDUTRA/INACDUTRA service. The examiner should observe the post-service May 2008 left knee injury. (c) Low back condition: Identify all current diagnoses, if any, which have existed during the appeal period (beginning November 2008). Thereafter, opine whether it is at least as likely as not (50% or more) that any identified condition, onset during, was aggravated (beyond the natural progression of the condition) or is otherwise related to his ACDUTRA or INACDUTRA periods as a pilot, also considering the impact of any physical training. It should be noted that the Veteran served from 1975 to 2001 in the Army National Guard/Reserve, which typically means one weekend per month, and two weeks per year of ACDUTRA/INACDUTRA service. Discuss the significance, if any, of the articles submitted by the Veteran in support of his claims, including those dated in VBMS from April 2010, May 2010, and April 2011. The examiner must provide a complete rationale and address any conflicting evidence of record. 5. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case. 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). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs