Citation Nr: 18152989 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-37 687 DATE: November 27, 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 sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to his service. 2. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303(b), (d). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1985 to February 1995. Neither the Veteran nor his representative has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in October 2018. However, his appeal for the claims addressed herein had already been activated at the Board. Thus, his appeal is no longer eligible for the RAMP program at this time, and the Board will undertake appellate review of the case. Issues 1-2: Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Where there is evidence of acoustic trauma, tinnitus is also considered a “chronic disease” under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. Fountain v. McDonald, 27 Vet. App. 258 (2015). The presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran’s claim for service connection for bilateral hearing loss and tinnitus. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels; or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his bilateral hearing loss and tinnitus began in service. In his June 2016 notice of disagreement, he noted that his hearing loss was due to his in service duties that often required the use of loud machinery and exposure to noise aboard the ships he serviced. At the December 2017 VA audiological examination, he reported that his tinnitus began in the early 1990s, when he was in service. His statements are credible and consistent with the circumstances of his service, as his DD 214 Form shows that he served in the US Navy from November 1985 to February 1995 in law enforcement and his grade was BM2. His service personnel records reflect duties including preserving and maintaining his ship’s structure (such as preservation of the military police patrol boat). After a thorough review of the evidence of record, the Board concludes that the Veteran’s bilateral hearing loss, including based on continuity of symptomatology, and tinnitus are related to his acoustic trauma in service. 38 C.F.R. § 3.303. The Veteran has a current diagnosis of bilateral sensorineural hearing loss as per 38 C.F.R. § 3.385. See, e.g., December 2017 VA examination that shows the Veteran had 40 decibels in both ears at 3000 Hertz. The Veteran is competent to report that he has experienced symptoms of bilateral hearing loss since service. His statements are credible for the reasons discussed above. As for tinnitus, the Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally, Charles v. Principi, 16 Vet. App. 370 (2002). In October 2017, a private examiner opined that it is as likely as not that the Veteran’s bilateral hearing loss and tinnitus are directly and casually related to the acoustic trauma sustained in service, to include noise exposure from ship engines, compressed air guns for ship maintenance, sirens, and warning systems. On VA audiological examination in December 2017, the examiner opined that the Veteran’s tinnitus is at least as likely as not the result of the Veteran’s military acoustic trauma, as tinnitus is a known symptom of noise trauma. The Board recognizes that, on VA audiological examinations in April 2016 and December 2017, the examiners rendered unfavorable opinions regarding the etiology of the Veteran’s hearing loss. Also, on the April 2016 VA examination, the examiner rendered an unfavorable opinion regarding the etiology of the Veteran’s tinnitus. To the extent that the examiners opined that the Veteran’s bilateral hearing loss preexisted service and was not aggravated by service, the opinions are of minimum probative value as they are based on an inaccurate factual premise. The evidence does not show that the Veteran had bilateral hearing loss per VA criteria in 38 C.F.R. § 3.385 prior to service. Notably, the audiogram on the Veteran’s entrance examination in December 1984 does not show hearing loss in either ear as defined by 38 C.F.R. § 3.385. The Veteran does not contend otherwise. To the extent that the examiner on the April 2016 VA examination opined that left ear hearing loss and tinnitus are not at least as likely as not caused by service (right ear hearing loss was not shown on the April 2016 VA examination), and the examiner on the December 2017 VA examination opined that bilateral hearing loss is not at least as likely as not caused by or a result of service, these opinions are not any more probative than the positive evidence discussed above. As the evidence here is in relative equipoise, meaning that the evidence for and against the Veteran’s claims is essentially equal, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss and tinnitus is granted. REASONS FOR REMAND Issue 3: Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. The Board cannot make a fully-informed decision on the claim for service connection for sleep apnea, to include as secondary to a service-connected disability. In this regard the Veteran in his May 2016 notice of disagreement contended that his sleep apnea is secondary to his service-connected hypertension. He noted a study conducted at John Hopkins University published in the April 2000 issue of the Journal of the American Medical Association, which confirms a possible connection between sleep apnea and hypertension. Although a VA opinion was obtained in June 2016, the examiner did not address whether the service-connected hypertension aggravated the Veteran’s sleep apnea. Thus, an opinion must be obtained from an appropriate clinician as to whether the Veteran’s sleep apnea is at least as likely as not aggravated by the service-connected hypertension. Further, in the October 2017 private opinion, the examiner opined that sleep apnea is as likely as not directly and causally related to chronic obstructive pulmonary disease and bronchial asthma and that there are elements of posttraumatic stress disorder (PTSD) active in causation of this condition. It is noteworthy that the private examiner concluded by stating “(i)t is accordingly as likely as not that same is directly and casually related to” active service. Although the examiner’s conclusion is ambiguous, the overall context of his opinion shows that he was opining that the Veteran’s sleep apnea was secondary to respiratory and psychiatric disorders. At this juncture, the Veteran is not service connected for a respiratory disorder or a psychiatric disorder. However, the claim of entitlement to service connection for COPD and the claim to reopen service connection for PTSD are currently before the Agency of Original Jurisdiction (AOJ), as these issues were denied in a March 2018 rating decision and as the Veteran filed a notice of disagreement in November 2018. Thus, the Veteran’s service connection claim for sleep apnea also is inextricably intertwined with the claim for service connection for COPD and the claim to reopen service connection for PTSD and must be deferred pending AOJ resolution of these claims. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s sleep apnea. After reviewing the claims folder, the examiner must opine as to whether the Veteran’s sleep apnea is at least as likely as not (a) caused or (b) aggravated by the service-connected hypertension. If there is aggravation, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is asked to comment on the Veteran’s reference to medical literature to include a study conducted at John Hopkins University that was published in the April 2000 issue of the Journal of the American Medical Association, which confirmed a possible connection between sleep apnea and hypertension. (CONTINUED ON NEXT PAGE) 2. Afterwards, and pending resolution of the claims for service connection for a respiratory disorder, to include COPD and bronchial asthma, and for a psychiatric disorder to include PTSD, the AOJ should readjudicate the claim for service connection for sleep apnea, to include as secondary to a service-connected disability. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel