Citation Nr: 1808932 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-27 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder, now claimed as chronic fatigue syndrome, claimed as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2013, the Veteran testified before a Decision Review Officer (DRO) at the RO. In November 2016, the case was remanded in order to afford the Veteran his requested Board hearing. Thereafter, in May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. At such time, the undersigned held the record open for 60 days so that the Veteran could procure and submit additional evidence in support of the claim. Such evidence was received in June 2017 and, as his substantive appeal was received in September 2013, a waiver of Agency of Original Jurisdiction (AOJ) consideration is not necessary. See 38 U.S.C. § 7105(e)(1) (2012)); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Therefore, the Board may properly consider such evidence. With regard to the characterization of the Veteran's claim for service connection for sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder, now claimed as chronic fatigue syndrome, claimed as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, the Board notes that the AOJ originally adjudicated such matters separately. However, in light of his report at the May 2017 Board hearing that such symptoms were intended to be claimed as chronic fatigue syndrome and he has alleged that such is related to his service in the Persian Gulf, the Board has characterized such as shown on the title page of this decision. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Bilateral Hearing Loss The Veteran essentially contends that he currently has bilateral hearing loss that began shortly after his military service in approximately 1993. In this regard, at the May 2017 Board hearing, the Veteran testified that he was around loud noises on a daily basis as he handled all communications onboard an aircraft carrier; worked in close proximity to a jet engine test room, which tested jet engines every night for several hours; would go to main machinery and boiler rooms to do maintenance; and was on or around the flight deck with planes taking off/landing. As such, he contends that service connection for bilateral hearing loss is warranted. The Veteran's service treatment records (STRs), which include his February 1989 and January 1993 Reports of Medical Examination that were completed at the time of enlistment and separation, respectively, reflect that he had normal hearing acuity bilaterally upon evaluation. The accompanying Reports of Medical History contain the Veteran's report that he never had, and was not currently, experiencing hearing loss. Additionally, the Veteran's remaining STRs, and his post-service treatment records, are negative for any complaints, treatment, or diagnoses referable to bilateral hearing loss. However, the Board observes that the Veteran's DD-214 reflects that his primary Military Occupational Specialty (MOS) was Electrical/Mechanical Equipment Repairman. Consequently, the AOJ acknowledged the Veteran's in-service noise exposure. In light of the foregoing, the Veteran was afforded a VA audiological examination in August 2011 in connection with his claim. At this time, the examiner found that the Veteran did not have a bilateral hearing loss disability for VA purposes. However, during the May 2017 Board hearing, the Veteran testified that he continued to experience hearing loss, and his hearing acuity had decreased in the prior six years. Consequently, as such suggests that the Veteran may now have a bilateral hearing loss disability as defined by VA, a remand is necessary in order to schedule him for a new VA examination to determine if he has a current hearing loss disability, and if so, whether such is related to his in-service noise exposure. Tinnitus The Veteran essentially contends that he currently has recurrent tinnitus that began during his military service in approximately 1991-1992. As such, he contends that service connection for tinnitus is warranted. The Veteran's STRs, as well as his post-service treatment records, are negative for any complaints, treatment, or diagnoses referable to tinnitus. However, in light of his MOS, his in-service noise exposure has been acknowledged and, as tinnitus is a condition capable of lay observation, the Board finds that he has a current diagnosis of such disorder. As noted previously, the Veteran underwent a VA audiological examination in August 2011. At this time, the examiner noted the Veteran's reports that he noticed his tinnitus approximately 1-2 years following his military service discharge, with no particular precursor. Consequently, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure. As rationale for the opinion, the examiner indicated that the Veteran reported an onset of tinnitus 1-2 years following his separation of military service. He further indicated that there was no research evidence to support a claim of delayed onset tinnitus following an incident of noise exposure. In this regard, the examiner found that, after consulting with a professor in the Department of Otolaryngology at a medical school, tinnitus had an immediate onset after significant noise exposure. However, at the Veteran's May 2017 Board hearing, he provided additional information regarding the onset of his tinnitus, which was not considered by the August 2011 VA examiner. Specifically, the Veteran reported that he first noticed the ringing in his ears in approximately 1991-1992 and such had continued to the present time. He further reported that there might have been a miscommunication with the August 2011 VA examiner as during the examination as he indicated that his hearing loss, rather than his tinnitus, began approximately 1-2 years following his service discharge. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's tinnitus that takes into account his recent statements regarding the onset of such disorder. Hypertension The Veteran contends that his current hypertension had its onset during his military service or within a year after separation. Specifically, during his March 2013 DRO hearing, he testified that he was diagnosed with hypertension in approximately 1998 and, while in service, the examiners always told him that his blood pressure was high. Additionally, at the May 2017 Board hearing, he testified that, prior to service, he did not have high blood pressure; however, since approximately August 1993, when he first became aware that he had high blood pressure at a doctor's appointment, his blood pressure readings have been between 145-166/85-95. He further testified that, while in service, he experienced symptoms that may have been indicative of high blood pressure readings, including a rapid heartbeat and occasional headaches. The Veteran reported that he continues to have high blood pressure readings and was currently taking medication for such condition. Therefore, he claims that service connection for hypertension is warranted. The Veteran's STRs are negative for complaints, treatment, or diagnoses referable to hypertension. Additionally, his January 1993 separation examination reveals a blood pressure reading of 124/80. The Veteran's post-service VA treatment records reveal a blood pressure reading of 146/91 in June 2011. Such record further reveals a report of hypertension. A July 2011 VA treatment record indicates the Veteran's blood pressure readings of 141/81 and 148/87; and an addendum to such record further indicates a recommendation that he take a water pill for his blood pressure. Additionally, a January 2013 VA treatment record notes a blood pressure reading of 138/89. Such record further notes a report of borderline hypertension. Furthermore, the Veteran's post-service private treatment records reveal a report of essential hypertension under "Current Problems" in June 2017. In the instant case, the Board finds that, in light of the Veteran's VA and private treatment records showing an impressions of hypertension, lay statements from the Veteran regarding high blood pressure readings and alleged associated symptomatology in-service, and his report of a continuity of hypertension symptomatology, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his hypertension. Sleep Disturbances, Restless Leg Syndrome, Skin Rash on the Arms, and Neurological Disorder Initially, the Board notes that the Veteran had documented service in Southwest Asia during the Persian Gulf War. Thus, service connection may be established under 38 C.F.R. § 3.317, which provides that service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117. Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuro-psychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). In this regard, the Veteran contends that he has sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder, which he now alleges is chronic fatigue syndrome, due to an undiagnosed illness or other qualifying chronic disability. Specifically, at the May 2017 Board hearing, the Veteran testified that his skin rash appeared in approximately August 1993, would last for approximately three months and then disappear for two months, and had moved from his arms to his face. Here, the Veteran explained that he was currently using the medication Metrogel for his skin rash. He further testified that, prior to service, he would get a solid eight hours of sleep every night. However, since approximately 1989, he would always wake up every hour until he was put on sleep medication two years previously that allows him to get six hours of sleep every night. Additionally, the Veteran reported that, in approximately 1991-1992, he felt cramps in his calves, which woke him out of his sleep, that have continued to the present time. He further reported that he had a lot of anxiety and depression since service, and had been on medication for such for approximately six years. In support of his claim, the Veteran submitted a June 2017 written statement from his fiancé in which she reported that she had lived with the Veteran since September 2014, and he had a terrible snoring issue and, on many occasions, would stop breathing in his sleep. The Veteran's STRs are negative for complaints, treatment, or diagnoses referable to sleep disturbances, restless leg syndrome, or a neurological disorder; however, his February 1989 Report of Medical History reveals his report of skin diseases, and the examiner noted that the Veteran had acne. Additionally, an April 1992 STR indicates the Veteran's complaint of a rash on his arms. Such record further indicates that the examiner noted that the Veteran had red, raised splotches on his arms, and reported an assessment of pityriasis rosea. The Veteran's post-service VA treatment records reveal his complaint of a skin rash on his face for approximately three days in February 2012. However, the his post-service private treatment records also reveal that the aforementioned symptoms may be attributable to known clinical diagnoses. Here, a June 2017 private treatment record reports generalized anxiety; restless leg syndrome; fatigue; and rosacea under "Current Problems." The Veteran underwent a VA Gulf War examination in September 2011. With respect to his skin rash, he reported that, right after he came back from service, in approximately June/July 1993, he had a rash on his forearms that did not itch, and he was prescribed medication by a doctor at the Warren Clinic. The Veteran further reported that he did not currently have a skin rash and had not had one for "years." Additionally, the examiner found that no skin condition was identified or diagnosed. With respect to the Veteran's restless leg syndrome, the Veteran reported that, on a normal day, he experienced tightening and tingling from his calf down and such symptoms had been occurring for approximately fifteen years at least five times a week. He further reported that he did not experience jerking movements or periodic movement. Additionally, the examiner found that the Veteran did not have restless leg syndrome, but rather noted a diagnosis of post-activity muscle cramps since 1996. As rationale for the opinion, the examiner reported that the Veteran described calf muscle or bilateral gastrocnemius muscle cramping that was activity related, and he did not describe any movement disorder, such as uncontrolled and spontaneous jerking movement of his legs during sleep or wakeful hours. The examiner further reported that the Veteran's described condition did not meet the criteria for a diagnosis of restless leg syndrome and the Veteran had been treated in the past by private doctors with medication for restless leg syndrome without any relief. The examiner concluded that the Veteran had post-activity related muscle cramps that were not related to environmental hazards due to the Gulf War. With respect to the Veteran's sleep disturbances and neurological disorder, he reported that his sleep is interrupted approximately five nights a week due to his thoughts and he has no day-time sleepiness/snoring/any symptoms related to sleep apnea. Additionally, the examiner determined that there was no evidence of a diagnosed mental disorder; rather, the Veteran had insomnia and further evaluation of any sleep disturbance condition would be more appropriately addressed in a mental health evaluation by a mental health expert. Thereafter, the Veteran underwent a VA mental disorder examination in April 2012. At this time, the examiner found that the Veteran did not meet the criteria for a mental disorder or insomnia. Here, the examiner opined that it was less likely than not that any of the Veteran's current sleep disturbances were caused or exaggerated by his military service. As rationale for the opinion, the examiner reported that the Veteran never had a formal label of, treatment for, or medication for a mental health problem (including insomnia) and there was no evidence of any formal mental health diagnosis based on PAI test results. The examiner further reported that the Veteran did not mention sleep problems while in service, he had no formal diagnosis of sleep problems since his service discharge, and his sleep disturbance did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. However, the Board notes that, while the September 2011 and April 2012 VA examinations found that the Veteran did not have a skin condition, restless leg syndrome, insomnia, or a mental health disorder, the June 2017 private treatment record reflects additional reports of generalized anxiety; restless leg syndrome; fatigue; and rosacea under "Current Problems." Therefore, the Board finds that a remand is necessary to provide the Veteran with a new VA examination to determine if his symptoms such as sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder are associated with clinical diagnoses and, if so, the etiology of such disorder and, if not, whether such are related to an undiagnosed illness or other qualifying chronic disability such as chronic fatigue syndrome. Records The Board observes that there may be outstanding VA and private treatment records relevant to the Veteran's claims. In this regard, with respect to his bilateral hearing loss, during his May 2017 Board hearing, he testified that he underwent additional audiological testing in approximately 2015 at the Jack C. Montgomery VA Medical Center (VAMC) in Muskogee, Oklahoma; however, such records have not been requested or obtained. Additionally, with respect to the Veteran's hypertension, during the May 2017 Board hearing, he reported that, beginning in approximately August 1993, he received treatment from a family physician for elevated blood pressure and had been on medication for such condition for the prior three years. Furthermore, the Veteran indicated that the same family physician had placed him on medication following treatment for his sleep disturbances for the previous two years and for his anxiety/depression for the previous five years. However, the only private treatment record pertaining to such disorders is dated in June 2017. Moreover, with respect to the Veteran's skin rash, a January 2013 VA treatment record reports that the Veteran was seeing a private dermatologist, Dr. M.M.; however, such records have not been requested or obtained. Therefore, while on remand, the AOJ should attempt to obtain the above-mentioned VA treatment records; and take appropriate steps, including contacting the Veteran and obtaining appropriate authorization, to obtain the above-mentioned private treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include those from the Jack C. Montgomery VAMC in Muskogee, Oklahoma dated in 2015. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request authorization to obtain any outstanding private treatment records pertinent to his claimed hypertension, anxiety/depression, sleep disturbances, and skin rash, to specifically include records referable to the private family physician he has seen since August 1993 and private dermatologist, Dr. M.M. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After all outstanding records have been associated with the record, afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed bilateral hearing loss. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner should indicate whether the Veteran has a diagnosis of bilateral hearing loss as defined by VA regulations. (B) If so, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset during service, is otherwise related to his military service, to include his acknowledged in-service noise exposure, or manifested within one year of his service discharge in March 1993, i.e., by March 1994? The examiner should take into consideration all of the evidence of record, to include the STRs, post-service treatment records, and lay statements from the Veteran concerning his in-service noise exposure while (1) onboard an aircraft carrier; (2) in close proximity to a jet engine test room, which tested jet engines every night for several hours; (3) in main machinery and boiler rooms to do maintenance; and (4) on or around the flight deck with planes taking off/landing, as well as his post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed by the examiner should be accompanied by a complete rationale. 4. After all outstanding records have been associated with the record, return the record to the VA examiner who offered the August 2011 VA audiological opinion. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record and the Remand have been reviewed. If the August 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion on the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tinnitus had its onset during service, is otherwise related to his military service, to include his acknowledged in-service noise exposure, or manifested within one year of his service discharge in March 1993, i.e., by March 1994? In rendering such opinion, the examiner should consider, and discuss, the Veteran's May 2017 Board hearing testimony in which he clarified that his tinnitus symptoms actually began in approximately 1991-1992 and had continued to the present time (as described above). All opinions expressed by the examiner should be accompanied by a complete rationale. 5. After all outstanding records have been associated with the record, afford the Veteran an appropriate VA examination to determine the nature and etiology of his claimed hypertension. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) had its onset during service, is otherwise related to his military service, to include his reported high blood pressure readings and/or alleged associated symptomatology of a rapid heartbeat and occasional headaches, or manifested within one year of his service discharge in March 1993, i.e., by March 1994? The examiner should take into consideration all of the evidence of record, to include the STRs, post-service treatment records, and lay statements from the Veteran concerning his high blood pressure readings in-service, as well as his post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. 6. After all outstanding records have been associated with the record, afford the Veteran an appropriate VA examination to determine the nature and etiology of any disability associated with his sleep disturbances, restless leg syndrome, skin rash on the arms, and neurological disorder, to include chronic fatigue syndrome. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner should conduct a comprehensive examination, and provide details about the onset, frequency, duration, and severity of all symptoms claimed to be associated with an undiagnosed illness, to include sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder. (B) The examiner should specifically state whether the Veteran's symptoms of sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder are attributed to known clinical diagnoses, to include chronic fatigue syndrome. (C) For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his service in the Persian Gulf War. (D) If any symptoms of sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (E) The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's symptoms of sleep disturbances, restless leg syndrome, skin rash on the arms, and a neurological disorder represent a "medically unexplained chronic multi-symptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology 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. In rendering such opinions, the examiner should consider, and discuss, the June 2017 private treatment record which reports generalized anxiety; restless leg syndrome; fatigue; and rosacea under "Current Problems" (as described above). All opinions expressed by the examiner should be accompanied by a complete rationale. 7. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).