Citation Nr: 18148666 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-22 776 DATE: November 8, 2018 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is granted. and major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remand. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety disorder, is remanded.   FINDINGS OF FACT 1. The Veteran does not have a diagnosis of left ear hearing loss for Veterans Affairs (VA) disability purposes. 2. The Veteran has established entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1989 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the VA Regional Office (RO) in Jackson, Mississippi. Initially, although the Veteran initiated appeals on other issues, his substantive appeal (VA Form 9) dated June 2014 was expressly limited to service connection for PTSD, MDD, hearing loss in his left ear, tinnitus in his left ear and sleep apnea. Accordingly, the claims for service connection for establishing eligibility to treatment, high blood pressure, irritable bowel syndrome, high cholesterol (alcohol abuse), headaches, hyperactivity, hearing loss in the right ear, tinnitus in the right ear and lower back condition are not in appellate status. 38 U.S.C. § 7105. The Board also notes that the Veteran originally filed a claim for entitlement to service connection for PTSD and MDD. The medical evidence of record indicates, however, that the Veteran has also been diagnosed with anxiety. Therefore, although not claimed by the Veteran, the appeal is broadened to include entitlement to service connection for anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that a Veteran’s claim for PTSD must be considered a claim for any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits in support of the claim). The Veteran’s Contentions The Veteran claims his emotional and physical well-being were affected by his service and he is unable to enjoy a full night of sleep or have normal hearing. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, including organic diseases of the nervous system 38 C.F.R. §§ 3.307, 3.309(a). Tinnitus is classified as an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Additionally, service connection for PTSD requires medical evidence establishing diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred and medical evidence establishing a link between current symptomology and the in-service stressor. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for left ear hearing loss Impaired hearing is considered a disability for VA purposes when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (“relevant frequencies”) is 40 Decibels or greater; the thresholds for at least three of the relevant frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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). Here, an audiogram performed during the Veteran’s March 1989 enlistment examination showed pure-tone air conduction thresholds of 5, 0, 5, 20 and 0 decibels in the left ear at the relevant frequencies. A September 1989 audiogram showed pure-tone air conduction thresholds of 5, 0, 10, 15 and 0 decibels in the left ear at the relevant frequencies. An audiogram performed during the Veteran’s November 1992 separation examination showed pure-tone air conduction thresholds of 10, 5, 0, 10 and 5 decibels in the left ear at the relevant frequencies. The Veteran was afforded a VA examination in February 2011. Audiological testing showed pure-tone air conduction thresholds of 15, 15, 15, 15 and 15 decibels in the left ear at the relevant frequencies. The examiner reported a speech recognition score of 100 percent in the left ear. The results of the February 2011 VA examination do not reveal the existence of a hearing loss disability in the left ear for VA purposes. 38 C.F.R. § 3.385. In the absence of a current disability, service connection for hearing loss for the left ear must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran is unable to establish the current disability element for service connection, the Board need not consider the remaining elements. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for left ear hearing loss, the doctrine is inapplicable. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. 2. Entitlement to service connection for tinnitus The Veteran claims he was exposed to noise during his active service in the form of cannons, bug guns, helicopters and machinery. The Veteran’s DD Form 214 and military personnel records reflect his service on a naval ship in SW Asia with a military occupational specialty of Boatswain’s Mate. The Veteran claims he first noticed tinnitus while on the ship and that it is worse in his left ear. The Veteran is competent to report his symptoms of tinnitus and, accordingly, able to meet the first element of service connection. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds, based on the Veteran’s statements to the VA examiner, that he was exposed to acoustic trauma in service. Specifically, the February 2011 VA examiner acknowledged the Veteran’s military noise exposure to include exposure to cannons, big guns, helicopters and machinery. The Board finds that the Veteran’s military history and contentions regarding in-service noise exposure are consistent with the circumstances of his service. The February 2011 VA examination concluded, without any supporting rationale, that the etiology of the Veteran’s tinnitus could not be determined without resorting to mere speculation. The Board finds the Veteran’s statement that he first noticed the tinnitus while on the ship is found to be credible and, as a layperson, the Veteran is competent to discuss the onset of his tinnitus symptoms. See Charles, 16 Vet. App. at 374; Layno, 6 Vet. App. at 465. Resolving all reasonable doubt in favor of the Veteran, his statement connecting his tinnitus to his active service is entitled to weight and service connection for tinnitus in the left ear is granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded The evidence of record reflects repeated complaints of sleep disturbances and poor sleep, dating back to the Veteran’s service treatment records. An August 2011 pulmonary consult noted that the Veteran was a “moderate risk for sleep apnea.” Given the foregoing, the Board concludes that remand is warranted for a VA examination to determine the nature and etiology of the Veteran’s claim for sleep apnea. 38 U.S.C. § 5103A(d). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (VA must provide an examination where there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury or disease but there is insufficient information to decide the claim.) 2. Service connection for PTSD. 3. Entitlement to service connection for anxiety is remanded. Issues 2-3 are remanded together. As noted, the claim for entitlement to service connection for an acquired psychiatric disorder was expanded to include anxiety. The evidence of record reflects that the Veteran was diagnosed with anxiety in October 2010 and, since that time, has often sought treatment from VA providers with complaints of anxiety. A VA examination is required to determine whether the Veteran’s anxiety is related to an in-service event or occurrence. See McLendon, 20 Vet. App. at 81. The issue of service connection for PTSD is intertwined, so will be remanded also. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After number 1 has been accomplished, schedule the Veteran for VA examinations to determine the nature and etiology of his (1) sleep apnea. Following review of the claims file and examination of the Veteran, the examiner should provide opinions regarding the following: (a.) whether it is at least as likely as not that the Veteran has sleep apnea that is causally related to his active service. Please explain why or why not. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric condition. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel