Citation Nr: 18150982 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-32 162 DATE: November 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to a rating in excess of 50 percent for service-connected unspecified trauma and stressor-related disorder, claimed as posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has a bilateral ear hearing loss disability that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSION OF LAW Service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to November 1970. The Veteran has received honors to include the Purple Heart. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for bilateral hearing loss is granted. 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). The Veteran contends that acoustic trauma during service caused his current bilateral hearing loss disability. The record reflects that the Veteran served in combat during active service, and the Veteran reports in-service noise exposure. Noise exposure is conceded. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. The October 2015 VA examination reflects present hearing loss for VA compensation purposes is present. Thus, the question before the Board is whether the Veteran’s bilateral hearing loss is more likely than not incurred in or aggravated by his military service; the Board concludes the evidence is in equipoise to support the Veteran’s claim. The service treatment records (STRs) reflect high frequency hearing loss in both ears and reports of tinnitus. A June 2008 examiner noted the left ear in-service high frequency hearing loss. The STRs also reflect in May 1968 the Veteran had 20 decibels at 2000 Hz and 45 decibels at 6000 Hz, reflecting some degree of hearing loss as defined by VA law. In June 2008, the Veteran also reported being exposed to excessive noise during service without hearing protection. The Veteran’s military occupational specialty (MOS) of Pilot is highly probable for hazardous noise exposure. The Veteran appeared for a VA examination in October 2015. The examiner posited a negative nexus opinion, stating that the Veteran’s bilateral hearing loss was less likely as not related to service. However, as to the left ear, the examiner stated that the Veteran’s report of onset of hearing loss, audiometric configuration and significant in-service threshold shift is consistent with noise-induced hearing loss. Therefore, the examiner stated that some of the Veteran’s hearing loss is at least as likely as not caused by or resulting from his military noise exposure and accumulated exposure noise. The examiner did not consider the STRs which also reflect high frequency hearing loss in the right ear. The examiner also did not discuss the likelihood of delayed onset hearing loss in the Veteran’s right ear, in light of the evidence it occurred in the left ear. The Veteran has also submitted a December 2015 statement indicating that he has suffered from hearing loss since service to present, only seeking treatment when it began interfering with his daily life. Weighing the Veteran’s combat experience, evidence of excessive noise exposure during service, the Veteran’s in-service, high frequency hearing loss in both ears, and the VA examiner’s opinion which is unclear and so creates speculation on the likelihood of bilateral hearing loss as related to service, the Board finds the evidence in equipoise; when the evidence is in equipoise, the Veteran prevails on the claim. The preponderance of the evidence is for the Veteran’s claim for bilateral hearing loss and the doctrine of reasonable doubt is applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for the service-connected unspecified trauma and stressor-related disorder is remanded. In this case, the Veteran last appeared for a VA examination as to his service-connected psychiatric disorder in October 2015. By his May 2018 Appellate Brief, the Veteran indicated that his disability has worsened. The Court has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As well, VA’s duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). 2. Entitlement to service connection for sleep apnea is remanded. VA treatment records reflect diagnosis of sleep apnea. The Veteran has stated that he suffered sleep disturbance in service to present. The Veteran has submitted lay statements that indicate the Veteran was snoring during service. Considering this evidence, a VA examination is necessary to opine as to the likelihood that the Veteran’s sleep apnea is related to service. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination of the current severity of his service-connected psychiatric disorder. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected psychiatric disability alone and discuss the effect of the Veteran’s psychiatric disability on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service snoring. 4. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev