Citation Nr: 18123700 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-09 962 DATE: August 3, 2018 ORDER 1. The appeal seeking to reopen a claim of service connection for carcinoid tumors is dismissed. 2. Entitlement to service connection for tinnitus is granted. REMANDED 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. 6. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. 7. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 8. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. 9. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. At the May 2018 videoconference hearing, prior to the promulgation of a Board decision in the matter, the Veteran’s attorney requested withdrawal of his appeal seeking to reopen a claim of service connection for carcinoid tumors. 2. The Veteran’s tinnitus is reasonably shown to have had onset in service, and to have persisted since. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal are met with respect to the claim seeking to reopen a claim of service connection for carcinoid tumors; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.204. 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1967 to May 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2013, July 2015, August 2015, and December 2015 rating decisions that denied service connection for bilateral hearing loss and tinnitus (November 2013 rating decision), denied service connection for sleep apnea and bilateral upper extremity neuropathy and granted service connection for PTSD, rated 30 percent, effective January 26, 2015 (July 2015 rating decision), denied service connection for carcinoid tumors (August 2015 rating decision), and denied service connection for bilateral lower extremity neuropathy (December 2015 rating decision). In May 2018 a videoconference hearing was held before the undersigned; a transcript is in the record. 1. The appeal seeking to reopen a claim of service connection for carcinoid tumors is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter, and is effective when received. 38 C.F.R. § 20.204. The issues that were to be addressed at the May 2018 videoconference hearing, were discussed at a pre-hearing conference [off-the-record], and the Veteran’s attorney indicated that upon discussion of the case with the Veteran prior to the hearing they had decided to withdraw the appeal to reopen a claim of service connection for carcinoid tumors. On the record during the hearing the representative expressed the Veteran’s intent to withdraw his appeal seeking to reopen the claim of service connection for carcinoid tumors. Accordingly, there remains no question of fact or law in the matter for the Board to consider, and the Board does not have jurisdiction to further consider an appeal in the matter. 2. Service connection for tinnitus is granted. The Veteran’s military occupational specialty (MOS) was laundry specialist. His service treatment records (STRs) contain no mention of complaints, diagnosis or treatment pertaining to tinnitus. In a December 2012 application for VA benefits, the Veteran reported that his tinnitus began in February 1968 during service. On November 2013 VA audiological evaluation, the Veteran related that during service he was exposed to noise from howitzers, noticed ringing in his ears in 1968, and that the tinnitus never went away. He reported that the tinnitus was constant, bilateral, and interfered with sleep. The examiner opined that his tinnitus was not related to his service because there was a lack of documentation of tinnitus in service and his MOS was considered to have a low level of noise exposure. At the May 2018 videoconference hearing, the Veteran testified that he served as a laundry specialist, had constant ringing in his ears on discharge from service, and still has ringing in his ears. Based on the Veteran’s military occupation (in the laundry, which the VA examiner indicated would have involved “low” exposure to noise, but the Board observes would have exposed him to the noise with heavy-duty laundry equipment) and his accounts of exposure to noise during service, it may reasonably be conceded that he had exposure to significant levels of noise in service. The evidence against the Veteran’s claim is in the opinion by the November 2013 VA examiner, who noted that the Veteran had normal hearing bilaterally on separation from service, that there was a lack of documentation of tinnitus in service and that his MOS exposed him to [only] a low level of noise, and opined that his tinnitus is unrelated to service. That opinion is inadequate for rating purposes; as noted above, the assumption that the Veteran did not have significant exposure to noise in service is not necessarily accurate. Furthermore, non-existence of a hearing loss disability is not fatal to a claim of service connection for tinnitus, as tinnitus can be present nonetheless. It is also not implausible that tinnitus may have been noted in service, but not been so annoying as to compel the Veteran to seek medical attention. The examiner did not adequately address the Veteran’s reports of onset of tinnitus in service and continuity thereafter. In essence, tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it). The Veteran is competent, and eminently qualified to, establish by his own accounts that he has tinnitus (and has had it continuously since service). He reported on November 2013 VA examination that he has had tinnitus since service, and at the May 2018 videoconference hearing he testified that he has had tinnitus since service. It is not in dispute that he has tinnitus. Tinnitus (as an organic disease of the nervous system) is listed as a chronic disease in 38 C.F.R. § 3.309(a)). Consequently, service connection may be established by showing continuity. See 38 C.F.R. § 3.303 (b). Therefore, what the Board must decide is the question of the Veteran’s credibility (in his accounts that his tinnitus began during service, and has persisted since). The Board finds no reason to question the credibility of those account. They are reasonably consistent with the circumstances of his service, and are not directly contradicted by any clinically recorded data. Resolving reasonable doubt in the Veteran’s favor (as required, see 38 U.S.C.§ 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that his tinnitus began in service and has persisted since. Service connection for tinnitus is warranted. REASONS FOR REMAND 3. Service connection for bilateral hearing loss is remanded. On November 2013 VA audiological examination, the examiner found that the Veteran did not have a hearing loss disability (as defined in 38 C.F.R. § 3.385). A February 2017 private treatment record notes that the Veteran had exposure to loud noise exposure during service; cites to a September 2015 audiology report that seems to suggest that the Veteran now has hearing loss disability, and includes the provider’s opinion that there is a “51 percent probability or better that his bilateral hearing loss is a direct result of loud noise exposure during service.” The opinion does not include rationale and is inadequate for rating purposes; however, it trigger’s VA’s duty to assist by securing an adequate medical advisory opinion in the matter. At the May 2018 videoconference hearing, the Veteran testified that his hearing acuity has declined since November 2013 (buttressing the allegation that he now has a nearing loss disability). Another examination to confirm whether he now has a hearing loss disability, and if so, ascertain its etiology, is necessary. 4. Service connection for sleep apnea is remanded. Service connection for sleep apnea has been denied based on a finding that while such disability was diagnosed in 2005 it was not shown to be related to the Veteran’s service. At the May 2018 videoconference hearing the Veteran raised an alternate theory of entitlement (that the sleep apnea is secondary to the Veteran’s service-connected diabetes mellitus). Such theory has not been adequately addressed in a medical opinion, or considered by the AOJ. An examination to obtain a medical advisory opinion in the matter, and adjudication that addresses the secondary service connection theory of entitlement are necessary. 5., 6. Service connection for bilateral upper extremity peripheral neuropathy is remanded. Service connection for bilateral upper extremity peripheral neuropathy was denied for lack of diagnosis of such disability. A February 2017 private medical opinion notes a diagnosis of bilateral upper extremity peripheral neuropathy; the provider opined that it is more likely than not that the neuropathy is related to the Veteran’s service-connected diabetes mellitus. The opinion does not include adequate rationale, and is inadequate for rating purposes. At the May 2018 videoconference hearing the Veteran raised an alternate theory of entitlement to service connection (that his claimed bilateral upper extremity peripheral neuropathy is secondary to service-connected diabetes mellitus). Such theory has not yet been considered (or addressed in a medical opinion). Therefore, an examination to obtain a medical advisory opinion and adjudication that addresses the etiology of the neuropathy and the theory of entitlement raised is necessary. 7., 8. Service connection for bilateral lower extremity peripheral neuropathy is remanded. A September 2015 treatment record notes decreased sensation of feet to monofilament, that diabetes socks and shoes were ordered, and that there was a provisional diagnosis of diabetic neuropathy by a VA provider. On November 2015 VA diabetic peripheral neuropathy examination, the examiner opined that the Veteran’s bilateral lower extremity radiculopathy was less likely than not caused by his service-connected diabetes mellitus. She explained that the physical examination revealed weakness on the left side which is consistent with radiculopathy due to a back condition because in diabetes mellitus the symptoms are usually equal bilateral; she also noted that his hemoglobin A1C was well below diabetic levels and that nerve damage is more likely to develop in uncontrolled, longstanding diabetes. The opinion is inadequate because it did not address aggravation. A February 2017 private medical opinion notes a diagnosis of bilateral lower extremity peripheral neuropathy, and that it is more likely than not that the neuropathy is related to the Veteran’s service-connected diabetes mellitus. That opinion lacks adequate rationale and is inadequate for rating purposes. An examination to reconcile the conflicting opinions regarding the etiology of the Veteran’s lower extremity neuropathy is necessary. 9. Entitlement to a rating in excess of 30 percent for PTSD is remanded. The most recent VA examination to assess the severity of the Veteran’s PTSD was in June 2015. At the May 2018 Board hearing it was alleged that symptoms of the Veteran’s PTSD have increased in severity since that examination. Considering the allegation of worsening and the 3-year interval since the Veteran was last examined, a contemporaneous examination to assess the disability is necessary. Finally, the Veteran appears to be receiving ongoing VA treatment for bilateral hearing loss, peripheral neuropathy, and PTSD. Records of such treatment may contain pertinent information, (and VA records are constructively of record), and updated treatment records must be secured. The most recent VA records in his file are dated in July 2017. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for bilateral hearing loss and sleep apnea, and to provide authorizations for VA to obtain updated, to the present, records of any private evaluations or treatment. Secure for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record). If any private records identified are not received pursuant to the request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. Specifically secure complete updated clinical records of all VA evaluations and treatment the Veteran has received for bilateral hearing loss, peripheral neuropathy, and PTSD since July 2017. 2. Then arrange for an audiological examination of the Veteran (with audiometric studies) to ascertain whether he now has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so, the likely etiology of the hearing loss. The entire record must be reviewed by the examiner in conjunction with the examination. On review of the record, and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either or both ears? (b) If a hearing loss disability is found, identify the likely etiology of such disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that it is related to his service (to include as due to his acknowledged exposure to noise therein)? If the hearing loss is determined to be unrelated to service, please identify the etiology for the hearing loss considered more likely (and explain why that is so). The examiner must include rationale with all opinions 3. Also arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his sleep apnea. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Based on examination and interview of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: (a) Identify the likely etiology of the Veteran’s sleep apnea (diagnosed by sleep study in 2005). Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (as due to disease, injury, or event, or by onset, therein)? (b) If the sleep apnea is found to not be directly related to his service, opine further whether it is at least as likely as not (a 50% or greater probability) that such disability was caused or aggravated by (increased in severity due to) the Veteran’s service-connected diabetes mellitus. [The opinion must address aggravation.] (c) If it is found that the service-connected diabetes mellitus did not cause, but aggravated, the sleep apnea, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. The examiner should include rationale with all opinions. 4. Also arrange for a neurologic examination of the Veteran to to determine whether he has peripheral neuropathy of the upper and lower extremities, and if so, its etiology. The entire record must be reviewed by the examiner, and any tests or studies deemed necessary must be completed. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have peripheral neuropathy of the right and left upper and right and left lower extremities? (b) If peripheral neuropathy is diagnosed, please identify its likely etiology. Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (due to disease, injury, or event, or had its onset, therein)? (c) If the peripheral neuropathy is found to be unrelated to the Veteran’s service, please opine further whether it is at least as likely as not (a 50% or greater probability) that it was caused or aggravated by (increased in severity due to) the Veteran’s service-connected diabetes mellitus. [The opinion must address aggravation.] All opinions must include rationale. 5. Arrange for a psychiatric examination of the Veteran to assess the severity of his PTSD. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the 38 C.F.R. § 4.130 criteria for rating mental disorders, and should note the presence or absence of each symptom listed in the criteria for ratings above 30 percent (and any symptoms of similar gravity found that are not listed), and comment on their related impairment of social (including daily living activity) and occupational functioning The examiner must include rationale with all opinions GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel