Citation Nr: 1823398	
Decision Date: 04/19/18    Archive Date: 04/26/18

DOCKET NO.  14-10 806A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for osteoarthritis.

4.  Entitlement to service connection for rheumatoid arthritis, to include as due to herbicide agent exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Santiago, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to November 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011, August 2013, and March 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2011 rating decision, the RO denied service connection for tinnitus, sleep apnea, and rheumatoid arthritis, inter alia.  In April 2014, the RO issued a statement of the case (SOC) addressing these three issues, as well as other issues.  Subsequently in April 2014, the Veteran submitted a substantive appeal (VA Form 9), thereby perfecting the appeal of the issues concerning tinnitus, sleep apnea, and rheumatoid arthritis, and limiting the appeal thereby.

In the August 2013 rating decision, the RO denied service connection for osteoarthritis.

In the March 2014 rating decision, the RO denied service connection for erectile dysfunction, inter alia.  In September 2015, the RO issued an SOC addressing only the ED issue.  In July 2016, the Veteran submitted a substantive appeal VA Form 9, but this was untimely as to the SOC.  In a July 2016 letter, the RO notified the Veteran that the appeal of the erectile dysfunction issue was untimely and was not considered on appeal.  The Veteran did not file a notice of disagreement (NOD) with the July 2016 decision; thus, the erectile dysfunction issue is not on appeal to the Board.  Instead, the Veteran filed a new claim for erectile dysfunction in July 2016.

On the July 2016 VA Form 9, the Veteran requested a Board hearing.  However, the Veteran withdrew his request for such hearing in a written statement received in February 2018.  See 38 C.F.R. § 20.704(e).

Since the issuance of the SOCs, additional evidence was received.  In light of the decision below granting the benefits sought in full with regard to the tinnitus issue, the case need not be remanded for RO consideration of such evidence.  See 38 C.F.R. § 20.1304(c).  The evidence pertaining to the sleep apnea, osteoarthritis, and rheumatoid arthritis issues will be considered by the agency of original jurisdiction (AOJ) in light of the remand for these issues.


FINDING OF FACT

The Veteran's tinnitus is related to service.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

II. Analysis

In a June 2011 NOD, the Veteran contends that he has tinnitus that is related to in-service loud noise exposure, to include mortar rounds and gunfire, without the chance to wear hearing protection.  Additionally, the Veteran's DD Form 214 indicates that the Veteran was recognized for being a rifle expert.

Regarding in-service incurrence of injury or disease, the Veteran's DD Form 214 indicates that his military occupational specialty (MOS) included combat engineer.  Thus, after consideration of the Veteran's assertions regarding his duties that are consistent with his MOS, the Board finds that he experienced exposure to loud noise during service.

The Veteran was afforded VA audiological examinations in February 2011 and September 2016.  Both examiners provided negative nexus opinions with regard to the Veteran's current tinnitus being related to service.  The September 2016 examiner noted that the Veteran reported that his tinnitus is constant and began in the late 60s or 70s.

The Veteran is competent to describe the presence of ringing in the ears.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Because tinnitus is primarily a diagnosis based on purely subjective complaints of ringing in the ears, the Board may accept his statements in this regard.

The Board notes that the evidence does not include a positive medical nexus opinion specifically linking the Veteran's tinnitus to service.  However, the Board finds no reason to doubt the veracity of the Veteran's statements regarding the presence and onset of his tinnitus, which the September 2016 examiner noted may have started during the time of service, according to the Veteran.  The contention that his tinnitus is related to in-service noise exposure is wholly consistent with his military duties involving gunfire without ear protection.  Given his competent and credible statements regarding his tinnitus, the Board finds the evidence is at least in equipoise regarding whether the Veteran's current tinnitus began during military service and continued since service.  Moreover, service connection has been awarded for hearing loss due to in-service noise exposure.

When viewing the evidence in the light most favorable to the Veteran and after resolving reasonable doubt in his favor, the Board finds that the Veteran currently has tinnitus that commenced in service and continued since service.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; See Wise v. Shinseki, 26 Vet. App. 517, 527 (2014) (by requiring only an approximate balance of positive and negative evidence to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990))).  Accordingly, service connection for tinnitus is warranted.


ORDER

Service connection for tinnitus is granted.


REMAND

In his June 2011 NOD, the Veteran contends that his rheumatoid arthritis is due to in-service herbicide agent exposure.  Additionally, the Veteran asserted in multiple statements that a physician (J.M., M.D., Ph.D.) has supported such contention.  See, e.g., June 2011 NOD; May 2012 Veteran statement.

Turning to the sleep apnea issue, a March 19, 2008, VA medical record shows that the Veteran has been diagnosed with moderate obstructive sleep apnea.  In an April 2014 NOD, the Veteran contends that he had trouble sleeping in service before he left Vietnam.

Because VA has not afforded the Veteran examinations addressing rheumatoid arthritis or sleep apnea, the Board finds that he should be scheduled for VA examinations to determine whether such disabilities are related to service.  See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

With regard to the osteoarthritis issue, the Veteran submitted the April 2014 NOD in response to the August 2013 rating decision denying service connection for osteoarthritis.  The Board notes that RO has since issued a March 2017 rating decision denying osteoarthritis as 10 separate issues corresponding to specified joints.  To date, no SOC has been furnished addressing such issue(s).  The Board has jurisdiction solely to remand the osteoarthritis issue(s) for such an action.  See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

Additionally, a July 2011 counseling record (received in November 2012) shows that the Veteran receives Social Security Administration (SSA) benefits, at least in part, for service-connected disability.  However, SSA records do not appear to be currently associated with the claims file, and thus, such records should be requested on remand because they could be relevant to the Veteran's claims.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  Ongoing VA medical records should also be requested.

Accordingly, these issues are REMANDED for the following actions:

1.  Prepare an SOC addressing the issue(s) of service connection for osteoarthritis.  This action is required unless the matter is resolved by granting the benefit(s) sought by the Veteran or by the Veteran's withdrawal of the NOD.  If, and only if, a timely substantive appeal is filed, should such issue(s) be returned to the Board.

2.  Request updated VA treatment records.

3.  Request all documents pertaining to the application of disability benefits from SSA, including the records relied upon in determining whether benefits were warranted.

4.  After associating the above records, if any, with the claims file, schedule the Veteran for VA examinations by examiner(s) with sufficient expertise to determine the nature and etiology of the Veteran's rheumatoid arthritis and sleep apnea with opinions on whether such disabilities at least as likely as not (50 percent or greater probability) had their onset during, or are etiologically related to, the Veteran's military service.

5.  Finally, readjudicate the claims remaining on appeal.  If the benefits sought are not granted in full, then furnish the Veteran and his representative with a supplemental statement of the case and give them an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

The appellant 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.



______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs