Citation Nr: 18149998 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-09 243 DATE: November 14, 2018 ORDER Service connection for left ear hearing loss is granted. REMANDED Service connection for a right wrist condition is remanded. Service connection for a left knee condition is remanded. Service connection for a sleep disorder is remanded. FINDING OF FACT The June 2017 VA audiological examination report establishes that the Veteran has current left ear hearing loss disability (as defined by VA regulations). In-service noise exposure is shown by the Veteran’s service as a gunner on security details in Afghanistan and Iraq where he was exposed to noise from gunfire, grenades, vehicle engines, and diesel generators. In a September 2011 written statement, the Veteran reported noticing hearing loss and tinnitus after returning from Afghanistan in June 2011. The Veteran is service connected for right ear hearing loss and tinnitus, which the June 2017 VA examiner related to the in-service exposure to weapons fire and vehicle noise. There is no evidence of post-service occupational or recreational noise exposure. Resolving reasonable doubt in the Veteran’s favor, the Board of Veterans’ Appeals (Board) finds that the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding that service connection is warranted for left ear hearing loss. The November 2011 and June 2017 VA audiological examiners’ negative nexus opinions were considered but cannot be assigned significant probative weight because the examiners primarily based their opinions on the Veteran’s normal separation audiogram and did not fully consider the Veteran’s competent and credible reports of gradual and worsening hearing loss symptoms since service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2005 to August 2005 (for training), March 2009 to February 2010, and November 2010 to July 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision. In December 2016, the Board remanded this matter for additional development. Service connection for left ear hearing loss For the reasons outlined above, service connection is warranted. REASONS FOR REMAND 1. Service connection for a right wrist condition is remanded. 2. Service connection for a left knee condition is remanded. 3. Service connection for a sleep disorder is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board’s December 2016 remand directive to provide the Veteran additional information regarding Gulf War illness claims. See Stegall v. West, 11 Vet. App. 268 (1998). A remand is also required for additional development explained in the specific directives below. The matters are REMANDED for the following action: 1. Obtain any updated VA (from January 2018 to present) and adequately identified private treatment records. 2. Obtain any service treatment records (STRs) not already associated with the claims file, to include records from the Veteran’s April 2005 to August 2005 military police training and medical records from the Veteran’s National Guard unit. 3. Send the Veteran a letter explaining (in more detail than the January 11, 2017 letter) the requirements for Gulf War illness service connection claims. The letter should also invite the Veteran to submit additional lay or medical evidence to support the claims on appeal. 4. Then, schedule the Veteran for a VA Persian Gulf War examination and a VA general examination. These examinations may be scheduled for the same date or even performed by the same examiner. The key point is that the examiner or examiners should evaluate the Veteran’s clinical and disability picture more holistically in providing information regarding the Gulf War claims (i.e., consider “joint pain” as a symptom rather than “right wrist and left knee pain” and in considering whether the Veteran’s symptoms in general suggest Gulf War illness) AND ALSO evaluate each claimed disability separately by providing the requested information for the direct and secondary service connection claims. The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner and the RO and regrets the need to remand the case to the RO. However, the Board is unable to adjudicate the claims until the requested information is provided. Therefore, the Board must ask the VA examiners and the RO to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. GULF WAR EXAMINATION INSTRUCTIONS In responding to the questions below, the examiner may wish to consider the UpToDate article Medical Care of the Returning Veteran. Roy, MJ and Perkins, Jeremy, Medical Care of the Returning Veteran, In: UpToDate, Post, TW (Ed), UpToDate, Waltham, MA, 2018 (accessed September 26, 2018). This article may provide helpful information about the links between Gulf War service and medical conditions including chronic pain and arthritis. Although clinicians have associated the Veteran’s sleep symptoms with psychiatric disorders and joint pain with musculoskeletal injuries; the examiner should consider all reported symptoms in evaluating whether the Veteran’s clinical picture AS A WHOLE suggests Gulf War illness. Please answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. a) Are the Veteran’s symptoms (including but not limited to joint pain and impaired sleep) attributable to fibromyalgia, chronic fatigue syndrome, and/or another medically unexplained chronic multisymptom illness? In answering this question, the examiner should consider the Veteran’s reports of “joint pain” as a WHOLE; rather than, as the done in the prior examination, only evaluating each joint condition separately, e.g., left knee pain. b) Are the Veteran’s symptoms and disability pattern objective indications of a chronic undiagnosed illness? Again, please consider the Veteran’s symptoms holistically. In other words, please explain if the Veteran’s symptoms, including but not limited to, joint pain and impaired sleep suggest Gulf War illness. c) Are the Veteran’s symptoms and disability pattern consistent with: (1) a diagnosable chronic multisymptom illness with a partially explained cause or (2) a disease with a clear and specific cause and diagnosis? d) If it is determined that the Veteran’s symptoms are manifestations of either (1) a diagnosable chronic multisymptom illness with a partially explained cause, or (2) a disease with a clear and specific cause and diagnosis, then please provide an opinion as to whether the disease or illness is related to environmental exposures encountered during service in Southwest Asia. For purposes of this examination, the examiner must consider the following: “Medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or cause that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. GENERAL EXAMINATION INSTRUCTIONS In responding to the questions below, the examiner may wish to consider the UpToDate article Medical Care of the Returning Veteran. Roy, MJ and Perkins, Jeremy, Medical Care of the Returning Veteran, In: UpToDate, Post, TW (Ed), UpToDate, Waltham, MA, 2018 (accessed September 26, 2018). This article may provide helpful information about the links between Gulf War service and chronic pain/arthritis. Please answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. RIGHT WRIST AND LEFT KNEE A new examination is required to allow the examiner to provide updated opinions in consideration of a recent federal court decision that pain may be considered a disability in certain circumstances. [The Board draws the examiner and RO’s attention to an August 2011 VA treatment record where the Veteran reported persistent right wrist pain since falling on his right wrist during active service, the Veteran’s September 2011 written statement reporting right wrist pain persisting after a June 2009 fall while deployed in Iraq, that will hopefully be helpful to the examiner and the RO in evaluating the Veteran’s claim.] For the right wrist specifically: please discuss with the Veteran the December 2009 STR showing a left wrist strain and determine whether this was a different incident than the Veteran’s claimed in-service right wrist injury, or, whether this is a mistake in the record as to which wrist was injured. a) Identify any right wrist or left knee disabilities. b) Please state whether the Veteran has right wrist and/or left knee pain with functional impairment that is not attributable to any diagnosed disability. (The Federal Circuit Court held that pain, even without a diagnosis, DOES count as a disability for VA compensation purposes IF the pain causes functional impairment.) c) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed right wrist or left knee disability or pain with functional impairment began during active service (for arthritis within one year of separation from any period of active service) OR 2) is otherwise related to the Veteran’s service? SLEEP DISORDER A new examination is required because the February 2017 examination report and the January 2018 addendum opinion provide a comprehensive discussion of sleep apnea, but do not discuss any other potential sleep disorders suggested by the Veteran’s symptoms. On remand, the examiner should consider the Veteran’s VA treatment records which appear to indicate that the Veteran’s sleep impairment is a symptom of his mental health conditions and provide an opinion discussing these records and stating whether the Veteran has a distinct sleep disorder diagnosis. d) Identify any sleep disorders (aside from sleep apnea which the January 2018 examiner concluded is not present). [The Board draws the examiner’s attention to the mental health treatment records relating chronic sleep impairment to the Veteran’s psychiatric diagnoses.] e) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed sleep disorder 1) began during active service OR 2) is otherwise related to the Veteran’s service? f) Is it as least as likely as not (a 50 percent or better probability) that any diagnosed sleep disorder was CAUSED by the Veteran’s service-connected psychiatric disorders? g) Is it as least as likely as not (a 50 percent or better probability) that any diagnosed sleep disorder was AGGRAVATED by the Veteran’s service-connected psychiatric disorders? (Aggravated in this context means the disability increased in severity beyond its natural progression.) A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel