Citation Nr: 18148574 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 08-07 813 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for residual injury to the face with dental trauma is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether the Veteran's bilateral hearing loss is related to service. 2. The evidence of record is in equipoise as to whether the Veteran's bilateral tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to March 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's claims file is currently under the jurisdiction of the VA RO in Houston, Texas. In December 2012, the Board remanded the issues for further development. In particular, the Board remanded the claim of entitlement to service connection for type II diabetes mellitus for the RO to issue a statement of the case. In January 2017, the RO issued a statement of the case. The Veteran did not submit a VA Form 9 until April 2017. That VA Form 9 is untimely because it was received more than 60 days after the January 2017 statement of the case and over a year after the April 2006 rating decision. 38 C.F.R. § 20.302. Therefore, the issue of entitlement to service connection for type II diabetes mellitus is not in appellate status. In September 2017, the Board remanded the appeal in order to schedule the Veteran for a hearing. In January 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2018, the Board sought expert opinion from the Veterans Health Administration (VHA) on the issue of entitlement to service connection for bilateral hearing loss and tinnitus. The VHA opinion, dated June 2018, has been reviewed and considered by the Board. As this opinion is fully favorable to the Veteran, the Board will proceed to adjudicate the claims on the merits rather than delay the case to provide the Veteran a copy of the opinion letter with an opportunity to respond. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic disorders, including sensorineural hearing loss, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran seeks service connection for bilateral hearing loss and bilateral tinnitus related to in-service noise exposure. The record demonstrates that the Veteran currently has bilateral hearing loss disability per VA standards. See 38 C.F.R. § 3.385. A March 2007 examination report, with an April 2007 addendum, contains findings indicative of up to moderate bilateral sensorineural hearing loss. Further, the VA examination report notes a diagnosis of bilateral tinnitus. Throughout the record, the Veteran has credibly stated he was exposed to various forms of acoustic trauma during service. At the March 2007 VA examination, the Veteran stated he was exposed to hazardous noise while performing military duties as a crewmember on an aircraft carrier. In particular, the Veteran reported exposure to noise from firearms, artillery, and aircraft engines. While service treatment records are silent for any complaints or treatment for hearing-related issues, the Board finds the Veteran’s reports of noise exposure credible and consistent with the evidence of record and the Veteran’s service duties as a cannon crewman. The dispositive issue on appeal concerns whether there is a causal relationship between the Veteran’s current bilateral hearing loss and tinnitus; and exposure to acoustic trauma in service. The Veteran underwent a VA audiological examination in March 2007, with an April 2007 addendum. The April 2007 examiner provided a negative nexus opinion regarding the conditions relationship to service. However, the examiner did not provide a rationale for the opinion. At the time that the examination was conducted, the Veteran’s service treatment records were unavailable. Therefore, the examiner did not offer an opinion on the etiology of the Veteran’s claimed bilateral hearing loss, or its potential relationship to the Veteran’s military service. As such, this examination is inadequate. In August 2015, the Veteran’s service treatment records were obtained and associated with the record, however, a new examination was not scheduled, nor was an addendum opinion sought from the April 2007 examiner. Instead, in May 2018, the Board sought additional opinion from a VHA otolaryngologist. In June 2018, this examiner found the Veteran’s in-service audiograms showed evidence of fluctuations on hearing consistent with temporary threshold shifts. The examiner noted that recent medical literature shows that hearing damage and tinnitus may occur despite return of normal hearing thresholds following noise exposure. Based on the Veteran’s audiological findings and significant in-service noise exposure, the examiner opined it is more likely than not that the Veteran’s hearing loss and tinnitus are related to military noise exposure. The June 2018 opinion has been rendered by a highly qualified professional and the Board affords the opinion significant probative value and finds that it is dispositive in this case. In sum, based on the totality of the evidence and affording the Veteran the benefit of all reasonable doubt, the Board finds that the Veteran’s current hearing loss and tinnitus are causally related to his exposure to noise while in service. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) As such, he is entitled to a grant of service connection for bilateral hearing loss and bilateral tinnitus. REASONS FOR REMAND Unfortunately, the Board finds that further AOJ action on the claims remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. 1. Entitlement to service connection for residual injury to the face with dental trauma is remanded. Regarding the claim for service connection for a dental disability for compensation and treatment purposes, the Veteran has asserted that he had four teeth knocked out, damaged another tooth, and required sutures for his lip, while he was on active duty. The service medical records show that he had several teeth removed in service. The Veteran's tooth number nine through 11 was extracted in service and the Veteran was provided dentures or a partial dental plate. The Veteran asserts that he has a current residual dental disability related to those procedures. To date, the Veteran has not been provided a VA examination that addresses diagnosis or etiology of his claimed dental disorder. Under the circumstances, the Board finds that an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran has claimed that he has a psychiatric condition related to his military service. Service treatment records indicate that he received treatment for in an initial diagnosis of conversion disorder which was later changed to a diagnosis of sociopathic personality disorder in 1964. Post-service clinical records indicate different diagnoses of PTSD, depressive disorder, anxiety disorder, affective disorder, and adjustment disorder. To date, the Veteran has not been provided a VA examination that fully addresses the diagnoses or etiologies of these conditions and their potential relationship to his military service. Under the circumstances, the Board finds that an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine whether the Veteran has any current psychiatric conditions, and if so, the nature and etiology of the conditions. The claims file contents should be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After reviewing the claims file, conducting examination, and obtaining any necessary studies, the examiner is asked to respond to the following: (a). Indicate all psychiatric disorders manifested since service, to include the diagnoses of PTSD, depressive disorder, anxiety disorder, affective disorder, and adjustment disorder contained in clinic records. The examiner is requested to discuss whether the previously diagnosed conditions were proper and currently asymptomatic, or a misdiagnosis. (b). Provide an opinion as to whether any diagnosed acquired psychiatric disability both (1) clearly and unmistakably preexisted service, and (2) clearly and unmistakably was not aggravated beyond its natural progression by service. For purposes of this analysis, aggravation is defined as a permanent worsening of the non-service connected disability beyond that due to the natural disease process. (c). If the examiner does not find that the Veteran had an acquired psychiatric disability that both clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service, then respond to the following: Provide an opinion addressing whether it is at least as likely as not that each current psychiatric disorder had its onset in service or is otherwise related to service. * The examiner is asked to specifically address the diagnosis of conversion disorder while in service, and whether the Veteran continues to have this condition, or whether it is related to any other diagnosed conditions. A complete rationale must be provided for any opinion given. The rationale must cite to supporting factual data and medical literature where appropriate. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Schedule the Veteran for a VA examination to evaluate his complaints of a dental disability. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be performed and clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented medical history and assertions. The examiner must determine whether the Veteran currently has any dental condition which is manifested by loss of substance of body of maxilla or mandible, or of the soft tissue surrounding that region. If this is the case, then please indicate whether it is at least as likely as not (50 percent or greater probability) that the diagnosed dental disability is etiologically related to dental trauma during the Veteran’s service. The examiner is specifically requested to discuss the Veteran’s assertions that he had suffered facial and dental trauma while in service. The examiner is also specifically requested to discuss the service treatment records which document the removal of several teeth. If there is no indication of a dental disability manifested by bone or soft tissue loss, then the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any current dental disability otherwise attributable to an identified incident of dental trauma during military service (including but not limited to subsequent lost or damaged teeth). The examination report must include a complete rationale for all opinions and conclusions reached. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor