Citation Nr: 1822650	
Decision Date: 04/18/18    Archive Date: 04/25/18

DOCKET NO.  14-31 197A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for hearing loss.

2. Entitlement to service connection for tinnitus. 

3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and sleep disorder. 


REPRESENTATION

Veteran represented by:	Kathy Lieberman, Attorney


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1964 to February 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Board notes that the Veteran also perfected an appeal with respect to service connection for heart disease. A May 2012 rating decision granted service connection for heart disease. As this is a full grant of the benefit sought, this issue is no longer on appeal. 

The issue of entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and sleep disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Giving the Veteran the benefit of the doubt, his bilateral hearing loss is etiologically linked to service.

2. Giving the Veteran the benefit of the doubt, his tinnitus is etiologically linked to service.


CONCLUSIONS OF LAW

1. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus, which he asserts were caused by his military service. 

The Veteran's service treatment records (STRs) are silent regarding any complaints, treatment, or diagnoses for hearing loss or tinnitus. The STRs show that between entrance and separation from service the Veteran's hearing acuity improved. 

In a September 2001 private audiological evaluation, the medical provider diagnosed hearing loss that is probably secondary to in-service acoustic trauma, although the provider could not rule out other etiologies. Similarly, in an October 2011 private opinion the medical provider opined that it is as likely as not that the Veteran's tinnitus was due to acoustic trauma during service. The provider opined that the Veteran entered service fit for duty; in-service hearing tests show a decibel loss consistent with noise exposure; and the time lag between injury in service and current tinnitus pathology is consistent with known medical principles and the natural history of the disease. Also, the medical provider reasoned that the Veteran's current hearing loss is out of proportion to his age, as the Veteran had significant hearing loss for the past decade and was only in his 50s when his serious hearing loss occurred, and records do not contain a more likely cause for his current hearing loss. The examiner further found that the decibel losses in service are the type that the provider expected to account for his hearing loss and tinnitus. In a January 2016 private opinion, the medical provider opined that it is more likely than not that the Veteran's hearing loss and tinnitus were caused by his noise exposure in service. She further stated that the Veteran's hearing loss was not age related and cited to medical literature that hearing loss can continue to progress over time. She stated that she reviewed the Veteran's in-service audiometric examinations and noted a modest improvement; however, this in-service improvement did not change her conclusion that the Veteran's in-service noise exposure caused hearing loss and tinnitus that continued to progress long after he separated from service. 

A September 2010 VA examination was conducted. The Veteran reported that in service he experienced noise exposure in basic training during training for marksmanship and in Vietnam working in an explosive ordinance disposal unit. The Veteran denied any post military recreational or occupational noise exposure. The Veteran stated that he began to have symptoms of tinnitus 10 years prior to the examination. The examiner opined that although the Veteran has a current diagnosis of sensorineural hearing loss, his hearing loss and tinnitus were not related to service. However, in reaching this conclusion the examiner reasoned only that the Veteran's hearing acuity was normal at entrance and separation from service and that there was no service-related noise-induced hearing pathology to which tinnitus could be medically linked. The Board finds this opinion is not persuasive. The Court has specifically held that a Veteran's normal hearing at separation does not necessarily indicate that he experienced no in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Here, as discussed above, the Board affords little probative value to the September 2010 VA examination. However, the Board finds that the private evaluations and opinions discussed above provide well-reasoned opinions and are thus both competent and credible regarding the etiology of the Veteran's hearing loss and tinnitus. In light of the Veteran's credible statements regarding in-service noise exposure, the probative opinions of the private evaluators as described above, and his current diagnoses of hearing loss and tinnitus, the Board gives the Veteran the benefit of the doubt and finds that service connection for bilateral hearing loss and tinnitus is warranted. Further discussion of the evidence is simply not warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted. 

Entitlement to service connection for tinnitus is granted. 


REMAND

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court indicated there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where 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; (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 to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4) (2017).

The Veteran submitted October 2011 and January 2016 private opinions that indicated that he has a current sleep disorder that was caused by service or aggravated by his weight gain in service, which the October 2011 evaluator stated was caused by his diabetes. Therefore, the evaluators concluded, the Veteran's sleep apnea is directly related to service or secondary to the Veteran's service-connected diabetes. However, the rationale offered by the private evaluators is inadequate. Given these private opinions, the Board finds that an examination is necessary to determine whether the Veteran's sleep disorder is caused or aggravated by his service or his service-connected diabetes. See McLendon, supra.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided.  

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder was caused or aggravated by the Veteran's military service. The examiner must specifically address the Veteran's allergies and respiratory complaints during service and his in-service weight gain.

The examiner must also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder is proximately due to or the result of the Veteran's service-connected diabetes.

If the answer is "No," the examiner must also provide an opinion as to whether it is at least as likely as not that he Veteran's service-connected diabetes has aggravated the sleep disorder. In this context, "aggravation" has occurred when it has been medically determined that the claimed condition has undergone an identifiable permanent increase in severity that was proximately due to or the result of service-connected disability.

3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).  

4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs