Citation Nr: 18144265 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-02 586 DATE: October 24, 2018 ORDER Service connection for tinnitus is granted. Service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran has experienced ringing in his ears related to tinnitus since he separated from service. 2. The weight of the competent and probative evidence is against a finding that the Veteran has a diagnosis of hearing loss for VA purposes in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1987 to September 1987, the United States Air Force from July 1988 to February 1990, and periods of service in the National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2013, November 2014, and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in February 2018. A transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§1101, 1112; 38 C.F.R. §§ 3.309 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease of the nervous system’ “); 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). 1. Entitlement to service connection for tinnitus. The Veteran contends that he has had tinnitus since service. The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, there has been continuity of the same symptomatology beginning in service. The Veteran has a current diagnosis of tinnitus as noted at the November 2014 VA examination; however, this VA examiner opined that the Veteran’s tinnitus was less likely than not related to military noise exposure. The examiner’s rationale was that the onset was after service rather than immediately after exposure. The Board finds this examination to have limited probative value as the examiner’s rationale stated that hearing loss and tinnitus occurs immediately after noise exposure. Indeed, in February 2018, the Veteran testified that his tinnitus began while he was in service. He is competent to report that he experienced symptoms of ear ringing during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He explained that while he has had tinnitus since his service, he did not report it because he did not think it was anything and only sought treatment because others had complaints regarding his hearing. His testimony is credible and entitled to probative weight, as it is internally consistent. Therefore, the Board finds that the evidence shows that Veteran’s tinnitus is related to hazardous noise exposure while in service, and that his tinnitus began in service and has continued since then. 38 C.F.R. § 3.303(b), 3.309(a). While there is a negative medical opinion regarding the etiology of the Veteran’s tinnitus, the Veteran has testified as to the onset of his tinnitus beginning while in service. Furthermore, he explained that he did not report his tinnitus until 2009 because of other individuals’ complaints regarding his hearing. As such, service connection for tinnitus is warranted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for left ear hearing loss. The Veteran contends he has left ear hearing loss that is related to his time in service. The question for the Board is whether the Veteran has a left ear hearing loss disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination in November 2014. His audiologic results for his left ear were as follows:   A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 20 20 20 15 20 30 40 His left ear average was 19 Hz. His speech discrimination score was 94 percent in his left ear. The examiner noted that he had sensorineural hearing loss in the frequency range of 6000 Hz or higher in the left ear. However, the Veteran does not have a hearing loss disability for VA purposes as he does not have thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; there are not auditory thresholds for at least three of these frequencies at 26 decibels or greater; and his speech recognition scores using the Maryland CNC Test is 94 percent, and as such, is not less than 94 percent. 38 C.F.R. § 3.385. The Board finds this examination to have much probative weight as the examiner conducted an audiological examination, and reviewed the Veteran’s pertinent medical records. For the above reasons, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability and acquired psychiatric disability. The Board must remand the Veteran’s claims of entitlement to service connection for a right knee disability and an acquired disability for additional development of the record. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty or active duty for training (ACDUTRA), or from an injury incurred or aggravated while performing inactive duty for training (INACDUTRA). The record indicates through service treatment records and VA treatment records that along with active duty service, the Veteran also had reserve service with periods of INACDUTRA and ACDUTRA. The Veteran has asserted that he was in a motor vehicle and bicycle accident in February 1994 that caused both his right knee disability as well as his acquired psychiatric disability. The exact dates of his reserve service and any ACDUTRA or INACDUTRA performed therein are not clear from the record. Therefore, it is necessary to obtain the Veteran’s complete reserve service personnel records. On remand, AOJ should attempt to obtain the Veteran’s Master Military Pay Account (MMPA) if available and/or existing, and/or sign-in rosters. 2. Entitlement to service connection for a lower back disability. The Veteran asserts service connection for a lower back disability. Initially, the Board notes that the Veteran has documented chronic thoracic back pain. Additionally, he had back pain related complaints in his service treatment records. The Board finds this to be competent evidence of persistent or recurrent symptoms of disability. While the Veteran reports pain in his lower back, and his medical records document chronic pain, the records are absent for any further diagnosis of a lower back disability. The Board also acknowledges the Veteran’s private medical opinion finding that his lower back disability is related to his time in service. However, this opinion has limited probative weight because the orthopedist only refers to the Veteran’s back disability as a back condition or lumbosacral pain. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007). However, the Board notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under § 1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, while the record is absent for a current diagnosis, the Board acknowledges that the Veteran reports his lower back has caused difficulty in his occupation because of pain, and the record indicates chronic lower back pain. As such, the Board finds that a remand is necessary so that an examination may be conducted of the Veteran’s lower back to establish whether the Veteran has a current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran has a left knee disability, that of osteoarthrosis. The Veteran has a documented injury for his right knee. However, his service treatment records are absent for left knee injuries. Moreover, he has not been scheduled for a VA examination to determine the nature and etiology of his left knee disability. The Board finds that a VA examination is warranted as such would be useful for a full and fair adjudication of this issue. Indeed, VA has not obtained a probative medical opinion as to whether the Veteran’s left knee disability was incurred in or is otherwise related to service, and the Board finds such would be useful to adjudicate this issue. 4. Entitlement to service connection for right ear hearing loss is remanded. The Veteran asserts service connection for his current diagnosis of right ear hearing loss. He underwent a VA examination in November 2014. In the examination, it was noted that he has a current diagnosis of right ear hearing loss for VA purposes. However, the examiner found that it was less likely than not that the Veteran’s right ear hearing loss was related to service. In an addendum, the examiner explained that the Veteran’s service treatment records showed normal hearing at separation. Additionally, the examiner stated that noise induced hearing loss is immediate and non-incremental. The Board finds this examination to be inadequate as the examiner overly relied on the Veteran’s right ear hearing loss not occurring immediately in service. Furthermore, the Veteran has submitted a medical opinion stating that it is inaccurate to conclude that hearing loss must be immediate and not progressive. Additionally, the Board notes that the U.S. Court of Appeals for Veterans Claims (CAVC) has held that where there is no evidence of the Veteran’s claimed hearing disability until many years after separation from service, if the evidence “demonstrate[s] a medical relationship between the [V]eteran’s in-service exposure to loud noise and his current disability, it would follow that the [V]eteran incurred an injury in service....” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As such, the Board finds that a new VA examination for the Veteran’s right ear hearing loss is warranted. 5. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran asserts service connection for OSA. His medical records indicate that he has a diagnosis of OSA. However, his service treatment records are absent for sleep related complaints. Moreover, he has not been scheduled for a VA examination to determine the nature and etiology of his sleep disability. The Board notes that the Veteran’s attorney has contended that his sleep apnea could originate from the Veteran’s exposure to organic pollutants. Considering the foregoing, the Board finds that a VA examination is necessary as such would be useful for a full and fair adjudication of this issue. Indeed, VA has not obtained a probative medical opinion as to whether the Veteran’s sleep disability was incurred in or is otherwise related to service, and the Board finds such would be useful to adjudicate this issue. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran’s obstructive sleep apnea and treatment. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Take all appropriate action to obtain and associate with the claims file service personnel records regarding the Veteran’ service in the Air Force Reserves. Verify all periods of ACDUTRA or INACDUTRA, to include thorough analysis of pay records and/or sign-in rosters, if necessary. Focus should be centered on February 1994. A written reported should be prepared detailing the beginning and ending dates of each period of ACDUTRA and INACDUTRA, to the extent possible. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 3. After associating any treatment records with the claims file, then schedule the Veteran for an appropriate VA examination for the right knee disability. The claims file should be made available to the examiner and reviewed in conjunction with the examination. Address whether: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s right knee disability was caused by a disease or injury in service? ** Please review and acknowledge the Veteran’s submitted medical opinion (9/27/2018 Correspondence).** 4. After associating any treatment records with the claims file, schedule the Veteran for a VA examination with an appropriate examiner for his acquired psychiatric disability. (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s acquired psychiatric disability was caused by a disease or injury in service? ** Please review and acknowledge the Veteran’s submitted medical opinion (9/27/2018 Correspondence).** 5. After associating any treatment records with the claims file, schedule the Veteran for an appropriate VA examination for the lower back disability. The claims file should be made available to the examiner and reviewed in conjunction with the examination. After reviewing the record and examining the Veteran, the examiner is to respond to the following: regarding the Veteran’s lower back, the examiner(s) is to provide a diagnosis which accounts for the Veteran’s present symptoms for his back. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the “Functional Impact” section of the report. Then, address: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s back disability was caused by a disease or injury in service? (b.) If no, then is it at least as likely as not (50 percent or greater) that the Veteran’s back disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 6. After associating any treatment records with the claims file, schedule the Veteran for an appropriate examination for his left knee disability. After reviewing the record and examining the Veteran, the examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater) that any left knee disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater) that any left knee disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 7. After associating any treatment records with the claims file, schedule the Veteran for audiological examination by an appropriate audiologist to determine the nature and etiology of any hearing disability. For any disability, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including hazardous noise. (a.) Additionally, the examiner is to address whether it is at least as likely as not (50 percent or greater) that any hearing disability (1) began during active service, (2) manifested within one year after discharge (February 1990) from service, or (3) was noted during service with continuity of the same symptomatology since service. **Please note and account for the likely exposure to loud noise in service. Additionally, the Veteran is competent to state that he had hearing related problems since exiting service.** 8. After associating any treatment records with the claims file, schedule the Veteran for an appropriate examination for his obstructive sleep apnea disability. After reviewing the record and examining the Veteran, the examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s obstructive sleep apnea was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater) that sleep disability was either 1) proximately due to or 2) aggravated by any service-connected disability? ** Please account for the Veteran’s representative’s statements (9/27/2018 Correspondence) regarding the etiology of his OSA and organic pollutants.** (Continued on the next page)   9. For each requested opinion above, a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD