Citation Nr: 18156013 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 150 DATE: December 6, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a sinus disorder is remanded. Entitlement to service connection for an allergy disorder, to include allergic rhinitis, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss. 2. The preponderance of the evidence is against finding that a back disorder began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The Veteran’s tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1992 to June 1994. A hearing was not requested. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). 1. Entitlement to service connection for bilateral hearing loss Service connection will be presumed for certain chronic diseases, including bilateral hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Because there is no indication that the Veteran’s hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. Regarding the first element of service connection for bilateral hearing loss, 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, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran’s June 2015 VA audiological examination does not provide for a diagnosis of hearing loss. Pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 15 LEFT 20 15 15 30 30 Speech recognition ability using the Maryland CNC test is 100 percent in the right ear and 98 percent in the left ear. Taken together, there is no Maryland CNC score of 94 percent or less, there is no pure tone threshold value of 40 decibels or greater, and there are no three frequencies for either ear where pure tone threshold values are 26 decibels or greater. For these reasons, the preponderance of the evidence is against the existence of a current diagnosis of bilateral hearing loss so as to satisfy the first element of entitlement to service connection. Because the first element is not satisfied, the Veteran’s claim must be denied. 2. Entitlement to service connection for a back disorder For the Veteran’s back disorder, the first element is satisfied, in that a May 2014 VA medical record indicates treatment for back pain. Unfortunately, the Veteran’s claim must be denied because a current back disorder was neither shown to be incurrent in service or linked by competent medical or lay statements. The Veteran’s service treatment records contain no evidence of back pain or treatment for a back disorder. The Veteran has provided no lay or medical evidence of an in-service incidence. His November 2016 VA Form 9 merely states that the back claim “cannot be truly addressed unless a favorable decision has been rendered” on the issues of entitlement to service connection for allergies, headaches, hearing loss, hypertension, a sinus disorder, and tinnitus. There is also no evidence or indication as to how a back disorder could be secondary to an allergy disorder, a headache disorder, hearing loss, hypertension, a sinus disorder, or to tinnitus. Furthermore, since the Veteran is not entitled to service connection for bilateral hearing loss, according to the VA Form 9, the Veteran’s back claim “cannot be truly addressed.” For these reasons, the preponderance of the evidence is against the existence of an in-service incident or the link of any current back disorder to service. In addition, the lack of evidence of an in-service incident or nexus evidence means that the Veteran has not satisfied the second and third McLendon elements, described in the Remand section below, so as to support entitlement to a VA examination. 3. Entitlement to service connection for tinnitus As an alternative to direct service connection, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran states that he has tinnitus and argues that tinnitus is the result of exposure to loud noises during boot camp and while working on an aircraft carrier. The Veteran is considered to be competent to diagnose tinnitus and its onset on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). In his June 2015 VA audiological examination, the Veteran stated that his diagnosis of tinnitus began “approximately three years after separating” from service. In his November 2016 VA Form 9, the Veteran indicates that that his “ears have been ringing since [his] discharge from service.” Since the evidence is at least in equipoise with respect to the onset of tinnitus and giving the Veteran the reasonable benefit of the doubt, the Board finds that the Veteran’s tinnitus began in service. Tinnitus is one of the chronic diseases under 38 C.F.R. § 3.307(a) for which service connection is available based on continuity of symptomatology. Therefore, based on the Veteran’s competent, credible evidence of in-service noise exposure, in-service tinnitus, and continuity of symptomatology, service connection for a tinnitus is warranted under 38 C.F.R. § 3.303(b). REASONS FOR REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for a sinus disorder is remanded. These elements are satisfied with regard to the claim of entitlement to service connection for a sinus disorder. Regarding the first element, a January 2014 VA medical record indicates sinus congestion. Regarding the second element, an August 1992 service treatment record (page 90 of 101) describes a cold with a fever. Also, in his November 2016 VA Form 9, the Veteran indicates that his allergies and sinus problems are the result of exposure “to jet fuel fumes, vehicle fumes, cleaning solvents and etc.” while serving aboard an aircraft carrier. Regarding the third and fourth elements, there is an indication that a sinus disorder could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion 2. Entitlement to service connection for an allergy disorder, to include allergic rhinitis, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for an allergy disorder. Regarding the first element, a November 2014 VA medical record indicates allergic rhinitis. Regarding the second element, a March 1993 service treatment record (page 83 of 101) indicates “difficulty breathing when exposed to smoke/vapors.” Also, in his November 2016 VA Form 9, the Veteran indicates that his allergies and sinus problems are the result of exposure “to jet fuel fumes, vehicle fumes, cleaning solvents and etc.” while serving aboard an aircraft carrier. Regarding the third and fourth elements, there is an indication that an allergy disorder could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 3. Entitlement to service connection for hypertension is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for hypertension. Regarding the first element, VA medical records indicate a current diagnosis for hypertension. Regarding the second element, an April 1993 service treatment record (page 79 of 101) contains a blood pressure reading of 140/102. Regarding the third and fourth elements, there is an indication that hypertension could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Entitlement to service connection for a headache disorder is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a headache disorder. Regarding the first element, a December 2012 VA medical record indicates headaches. Regarding the second element, in his November 2016 VA Form 9, the Veteran indicates that his headaches are the result of exposure “to jet fuel fumes, vehicle fumes, cleaning solvents and etc.” while serving aboard an aircraft carrier. He also suggests that his headaches could be the result of “[t]he landing and taking off of the aircraft along with the constant testing of the aircraft engines . . . .” Regarding the third and fourth elements, there is an indication that headaches could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for sleep apnea. Regarding the first element, a December 2017 private medical contains a diagnosis of sleep apnea. Regarding the second element, in an October 2017 statement in support of claim for PTSD, the Veteran argues that his sleep apnea is the result of service-connected PTSD. Regarding the third and fourth elements, there is an indication that sleep apnea could be related to PTSD, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. Additionally, on remand the RO should obtain all relevant VA treatment records dated from September 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from September 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed sinus disorder, allergy disorder (to include allergic rhinitis), headache disorder, sleep apnea, and hypertension. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed sinus disorder, allergy disorder (to include allergic rhinitis), headache disorder, sleep apnea, or hypertension. (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed sinus disorder, allergy disorder (to include allergic rhinitis), headache disorder, sleep apnea, or hypertension was incurred in the Veteran’s service. (c.) Whether the Veteran has any current or previously-diagnosed sleep apnea that (i) is proximately due to the Veteran’s service-connected PTSD or (ii) was aggravated by the Veteran’s service-connected PTSD. In addressing the Veteran’s allergy disorder (to include allergic rhinitis) and sinus disorder, the examiner should consider the March 1993 service treatment record (page 83 of 101) indicating “difficulty breathing when exposed to smoke/vapors.” The examiner should also address the August 1992 service treatment record (page 90 of 101) describing a cold with a fever. The examiner should also address the November 2016 VA Form 9, in which the Veteran indicates that his claimed allergies and sinus problems are the result of exposure “to jet fuel fumes, vehicle fumes, cleaning solvents and etc.” while serving aboard an aircraft carrier. In addressing the Veteran’s hypertension, the examiner should consider the April 1993 in-service blood pressure reading of 140/102 (page 79 of 101). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel