Citation Nr: 1804525 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-15 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas 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 gastrointestinal condition. 4. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 5. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, to include an acquired psychiatric disorder, coronary artery disease, and diabetes mellitus, type II. 6. Entitlement to service connection for skin condition, to include chloracne. 7. Entitlement to service connection for renal insufficiency, claimed as secondary to service-connected diabetes mellitus, type II. 8. Entitlement to an earlier effective date, prior to February 24, 2011, for a grant of service connection for coronary artery disease. 9. Entitlement to an earlier effective date, prior to May 7, 2015, for basic eligibility to Dependents' Educational Assistance. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1966 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2012, April 2015, and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The July 2012 rating decision, in pertinent part, denied entitlement to service connection for bilateral hearing loss. The April 2015 rating decision, in pertinent part, denied entitlement to service connection for tinnitus, a gastrointestinal condition, sleep apnea, hypertension, a skin condition, and renal insufficiency. The June 2015 rating decision, in pertinent part, granted entitlement to service connection for coronary artery disease, with a 10 percent evaluation, effective February 24, 2011; an evaluation of 30 percent, effective July 1, 2013; and an evaluation of 60 percent thereafter. Also, the June 2015 rating decision granted basic eligibility to Dependents' Educational Assistance, as of May 7, 2015. During the pendency of the appeal, the RO issued a rating decision in June 2015, grating the Veteran service connection for diabetes mellitus, type II, and bilateral lower extremity diabetic peripheral neuropathy. This grant represents the full benefit sought on appeal. Therefore, the Veteran's claims of entitlement to service connection for diabetes mellitus, type II, and bilateral lower extremity peripheral neuropathy are no longer before the Board. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets an additional delay, a remand is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran's claims that that he is afforded every possible consideration. 38 U.S.C.A. § 5102 (West 2014; 28 C.F.R. § 3.159 (2016). The Veteran contends that his current bilateral hearing loss is a result of in-service noise exposure. The Veteran was afforded a VA audiology examination in June 2012, with regard to his bilateral hearing loss. Examination of the Veteran revealed a diagnosis of bilateral sensorineural hearing loss. The examiner, however, opined that the Veteran's hearing loss was less likely than not caused by his active military service. The Board finds that the VA examination report is inadequate to decide the claim. In his rationale for the negative nexus opinion, the June 2012 VA examiner noted that the Veteran's hearing was within normal limits at both enlistment and separation from military service. The examiner, however, did not address the possibility of delayed-onset of hearing loss. In that regard, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As a result, the Board finds that a remand is necessary to obtain an adequate medical opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an April 2015 rating decision denied service connection for tinnitus, a gastrointestinal condition, sleep apnea, hypertension, a skin condition, and renal insufficiency. In August 2015, the Veteran submitted a timely Notice of Disagreement (NOD) with regard to above mentioned issues. Further, a June 2015 rating decision granted entitlement to service connection for coronary artery disease, effective February 24, 2011, and entitlement to basic eligibility to Dependents' Educational Assistance, effective May 7, 2015. In September 2015, the Veteran submitted a timely NOD with regard to the issues of entitlement to an earlier effective date for service-connected coronary artery disease, effective February 24, 2011, and entitlement to basic eligibility to Dependents' Educational Assistance, effective May 7, 2015. The submission of an NOD confers the Board jurisdiction over these matters. Accordingly, when a Veteran files a timely NOD as to a particular issue or issues, and no Statement of the Case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). To date, the RO has not provided an SOC on these claims. Thus, a remand is required. Notably, the Veteran should understand that, after the RO issues an SOC, he must timely file a Substantive Appeal (e.g. VA Form 9) in order to perfect his appeal and permit a decision on the merits by the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC with respect to the issues of entitlement to service connection for tinnitus; entitlement to service connection for a gastrointestinal condition; entitlement to service connection for sleep apnea, to include as secondary to a service-connected acquired psychiatric disorder, to include PTSD; entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, to include an acquired psychiatric disorder, coronary artery disease, and diabetes mellitus, type II; entitlement to service connection for a skin condition, to include chloracne; entitlement to service connection for renal insufficiency, claimed as secondary to service-connected diabetes mellitus, type II; and entitlement to an earlier effective date, prior to February 24, 2011, for a grant of service connection for coronary artery disease; and entitlement to an earlier effective date, prior to May 7, 2015, for basic eligibility to Dependents' Educational Assistance. 2. If the benefits sought on appeal with respect to the aforementioned claims are not granted to the Veteran's satisfaction, he or his representative should be provided an appropriate period of time for response and the RO must advise the Veteran and his representative, in writing, of the requirements for perfection of his appeal of this issue. If a timely Substantive Appeal is not filed, this claim should not be certified to the Board. If appealed, subject to the current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 3. Forward the Veteran's claim to an otolaryngologist, or other qualified medical examiner, concerning the likelihood that the Veteran's bilateral hearing loss is related or attributable to his active duty service. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any current hearing loss had its onset in service, was caused by military service, or is related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his current bilateral hearing loss. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should specifically address whether there was any threshold shift or notch at higher frequencies during service or shortly thereafter that may be indicative of acoustic trauma. The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. In rendering this opinion, the examiner should consider the Veteran's statement that his bilateral hearing loss is related to in-service noise exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address and to his representative. It should also be indicated whether any notice sent was returned as undeliverable. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence received. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).