Citation Nr: 1803364	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  17-13 222	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a left ankle injury.

4.  Entitlement to service connection for migraine headaches.

5.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).

6.  Entitlement to service connection for asthma.

7.  Entitlement to service connection for an acquired psychiatric disorder(s), to include major depression and schizoaffective disorders.

8.  Entitlement to service connection for hypertension (claimed as high blood pressure).

9.  Entitlement to service connection for atopic dermatitis (claimed as skin condition).


REPRESENTATION

Veteran represented by:	Michael J. Woods, Attorney


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION


The Veteran served on active duty from October 1987 to August 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and February 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In November 2017, the Veteran's attorney submitted a waiver for evidence submitted after the case was certified to the Board.

The Board has considered his claims and decided entitlement based on the evidence of record.  He has not raised any issue with VA's duty to assist nor has it been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues for service connection for a left ankle injury, migraine headaches, COPD, asthma, acquired psychiatric disorder(s), hypertension, and atopic dermatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not have bilateral hearing loss to an extent recognized as a disability for VA purposes.

2.  Resolving all doubt in the Veteran's favor, the currently demonstrated tinnitus is attributable to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for the establishment of service connection for tinnitus are met.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Hearing Loss

In this case, the Veteran contends that he began to experience bilateral hearing loss around the time of his separation from service and that such hearing loss is the result of exposure to loud noises in service associated with military equipment and weaponry as a cannon crewmember.  However, there is no medical evidence of current hearing loss as defined by VA at any time since the Veteran's claim was received in July 2013.

In order to obtain service connection under 38 U.S.C.A. § 1131 (West 2014) and 38 C.F.R. § 3.303 (a) (2017), a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so- called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).

During a May 2014 VA audiological examination, the Veteran's puretone thresholds, in decibels, were as follows:

For the right ear, at Hertz 500 1,000, 2,000, 3,000, 4,000; 15, 10, 10, 10, and 0 and for the left ear 10, 15, 15, 10, and 5.  Speech audiometry revealed speech recognition ability of 96 percent in the right and left ear.  He was diagnosed with normal hearing.

VA treatment records show on going evaluation and treatment for multiple medical conditions, but not hearing loss.

The Veteran has not undergone any other reported hearing examinations during the claim period.  He is competent to report the symptoms and history of his claimed hearing loss and the Board has no legitimate basis to challenge the credibility of his contentions.  However, the determination of whether a Veteran's hearing impairment constitutes a hearing loss disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 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. 

As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have current bilateral hearing loss under VA law at any time since his claim was received in July 2013, service connection for this disability is not warranted.  Thus, the preponderance of the evidence is against the Veteran's claim and the claim of service connection for bilateral hearing loss must be denied.  See 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385.

II.  Tinnitus

The Veteran contends that he is entitled to service connection for tinnitus.  For the following reasons, the Board finds the Veteran is entitled to service connection for this condition.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for any disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Here, the Veteran's DD Form 214 reflects he was a cannon crewmember.  Therefore, acoustic trauma is conceded.  The Veteran indicates that he first noticed the ringing in his ears since service. 

The Board finds that the Veteran's reports of ringing in the ears since being exposed to loud noise are consistent with the circumstances of his service.  The Veteran's competent credible assertions of ringing in his ears since service establish chronicity of the condition which was later diagnosed as tinnitus.  As such, a nexus to service is shown.

The Board is aware that a VA audiologist has provided a negative nexus opinion pertaining to the Veteran's tinnitus claim.  However, the Board is affording this opinion no more probative weight than the Veteran's lay statements.  Thus, as the evidence is in relative equipoise, the benefit-of-the-doubt doctrine is for application.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

Accordingly, as the Veteran has credibly reported experiencing ringing in his ears since service, service connection for tinnitus is warranted.  See 38 C.F.R. §§ 3.303 (b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002).


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.

REMAND

The claims file reflects that the Veteran was incarcerated at Rikers Island for 16 years.  He was released in February 2013.  (See September 2013 VA treatment record).  The AOJ should attempt to obtain any available medical records.

Further, the Veteran is receiving Social Security Disability Income (SSDI).  (September 12, 2013 VA treatment record).  On remand, the RO/AMC must to obtain any available records.

He also stated that he was treated by a private psychiatrist, Dr. Elise Grant, in upstate New York.  (See September 2013 VA treatment record).  On remand, the RO/AMC must to obtain any available records.

Also, many of the scanned STRs (service treatment records) are not legible even the May 2014 VA examiner noted "limited STRs and poor copies."  The September 2013 PIES Request stated "On 11/21/2013, all available requested records were shipped to contracted scan vendor for upload in VBMS."  On remand, legible STRs should be scanned and uploaded into VBMS.

The May 2014 VA examination is inadequate.  The VA examiner opined that the diagnosed asthma in service was preexisting, but did not provide an opinion as to whether the preexisting condition was aggravated by service.  Specifically, the examiner stated: "Review of this Veteran's STR had documentation dated 10/11/87 EXERCISE INDUCED REACTIVE AIRWAY DISEASE (listed on delayed entry enlistment papers) existed prior to his active service which started 10/27/87.  There is no medical evidence after discharge from service prior to 2013 of any respiratory condition to suggest chronicity.  CT scan of this Veteran's chest dated 9/26/13 showed emphysema.  Review of multiple medical literatures including Up to Date has information that Emphysema is a type of COPD involving damage to the air sacs (alveoli) in the lungs.  The most common cause is cigarette smoking.  This Veteran stated that he smoked for 30 years and recently quit in 2010."   On remand, the RO/AMC should obtain an addendum from the VA examiner.  Further, the VA examiner should comment on the May 2017 private nexus opinion from Dr. H. S.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate).

Lastly, Dr. R. W., a private physician, diagnosed the Veteran with major depressive disorder, recurrent, moderate with anxious distress features.  He concluded the Veteran's major depressive disorder was "more likely than not began in service and is aggravated by his COPD/Asthma," which causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  On remand, the Veteran should be afforded a VA examination to determine the nature of his disability.

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.  With appropriate information and authorization from the Veteran, obtain any available records of medical treatment or evaluation the Veteran received while incarcerated at Rikers Island from, at least, February 1997 to February 2013.

2.  With appropriate information and authorization from the Veteran, obtain any available records of medical treatment or evaluation the Veteran received from Dr. Elise Grant, in upstate New York.

3.  Obtain from the SSA all medical records underlying its determination awarding disability/SSI benefits.  If these records are not available, a negative reply is required.

4.  The RO/AMC should attempt to have legible STRs scanned and uploaded into VBMS.

5.  Once the above has been accomplished, the RO should obtain an addendum nexus opinion from the examiner who conducted the May 2014 VA examination for his asthma.  If the examiner is not available, the RO should obtain an opinion from another appropriate examiner for his asthma, so to obtain another medical opinion regarding the nature and etiology of the condition.  The examiner should be asked to determine if the Veteran's asthma is related to any incident of service, or was caused/aggravated (permanently worsened beyond normal progression) by his military service.  Specifically, if the examiner determines that any currently or previously diagnosed asthma did exist prior to service, the opinion must address whether the asthma was not aggravated due to his active duty service, and the examiner must state the specific evidence upon which this finding is based.  VA must inform the examiner that "aggravation" means that the disability was permanently worsened beyond the natural progression of the disease and that temporary or intermittent flare-ups of a preexisting disorder during service are insufficient to constitute "aggravation in service," unless the underlying disorder itself, as contrasted with mere symptoms, has worsened.

a. The examiner should again be provided with the Veteran's claims file in conjunction with the examination, and should indicate in the report that the claims file was reviewed. All testing deemed necessary should be performed.

b.  Please comment on the May 2017 private nexus opinion from Dr. H. S.  

A complete rationale must accompany all opinions rendered.

6.  Schedule a VA psychiatric examination to determine whether any diagnosed psychiatric disorder(s) found is related to his military service.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should opine whether it is at least as likely as not (50 percent probability or higher) that any diagnosed psychiatric disability had its onset during service, or is otherwise related to the Veteran's active duty.  In providing this opinion, the examiner is requested to comment on the opinion provided by Dr. R. W. (discussed above).

A complete rationale must accompany all opinions rendered.

7.  After review of the newly received evidence, conduct any other necessary development, to include examinations of other claimed disabilities, if warranted.

8.  Then, readjudicate the Veteran's claims on appeal.  If any claims remain denied, the Veteran and his attorney should be provided a Supplemental Statement of the Case (SSOC).  After the Veteran and his attorney have been given the applicable time to submit additional argument, the claim should be returned to the Board for further appellate consideration.

The Veteran 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 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).




______________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs