Citation Nr: A19001547 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190606-9660 DATE: September 26, 2019 ORDER Entitlement to service connection for sensorineural bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for sinusitis and/or allergic rhinitis is remanded. Entitlement to service connection for asthma and associated Chronic Obstructive Pulmonary Disease (COPD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, and to include as secondary to asthma, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is not etiologically related to his service. 2. The Veteran’s tinnitus is a symptom of his bilateral hearing loss and unrelated to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to January 1961. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Additionally, service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. For an enumerated “chronic disease” such as bilateral sensorineural hearing loss and tinnitus shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033 -01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran served as an armor crewman, and he has stated that he was exposed to several types of gunfire during service. See DD Form 214; October 2016 Veteran Statement. No audiometer was administered during his March 1958 enlistment examination, and he scored 15 out of 15 bilaterally on a whisper test. February 1959 service treatment records reflect that he was fitted for and issued ear plugs. During his November 1960 separation examination, he again scored 15 out of 15 on a whisper test. No audiometer test was administered. May 2013 private medical records reflect that the Veteran denied experiencing ringing in the ears. During a March 2017 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner acknowledged the Veteran’s exposure to gunfire during service and also noted that the Veteran reported wearing hearing protection during service. The Veteran further reported that his hearing loss started three years prior to the examination, and tinnitus began a year prior. After reviewing the Veteran’s claims file and noting no hearing issues for several decades after service, the examiner determined that the bilateral hearing loss is less likely than not related to service. The examiner further determined that the recent onset of tinnitus was at least as likely as not associated with the Veteran’s current bilateral hearing loss. August 2017 private medical records reflect that the Veteran reported hearing loss from in-service gunfire exposure, but also reported that no gear to protect his hearing was provided. The Veteran is competent to provide testimony regarding the use of hearing protection during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, the Veteran’s statement conflicts both with his previous statements and service treatment records reflecting that he was fitted for and issued ear plugs. The Veteran’s statement that he did not have hearing protection during service cannot be considered as credible evidence. In November 2017, a private physician examined the Veteran and reviewed his claims file. The physician noted the Veteran’s service as a tank driver and participation in the Army pistol team. The physician determined that the Veteran’s current bilateral hearing loss and tinnitus is directly related to his in-service noise exposure, opining that current credible professional literature indicates these disorders manifest many years after exposure to noise trauma. During an April 2019 VA examination, the examiner reviewed the claims file and examined the Veteran. The Veteran reported that he did not know he had hearing loss until a 2017 audiogram and had experienced tinnitus for two years. The examiner determined that the bilateral hearing loss is less likely than not related to service. The examiner noted that the Veteran’s hearing loss is flat and bilateral and opined that hearing loss induced by acoustic trauma would be more likely to show high frequency hearing loss. While the November 2017 private examination determining the Veteran’s hearing loss is etiologically related to service, it is less probative than the March 2017 and April 2019 VA examinations. The November 2017 private physician did not address the issue of hearing protection issued to the Veteran during service or the inconsistent statements of the Veteran regarding wearing such protection. Further, the more specific opinion of the April 2019 VA examiner indicating that the Veteran’s specific audiogram results less likely than not indicate hearing loss induced by acoustic trauma outweigh the more general November 2017 opinion that exposure to noise trauma several decades earlier likely caused the Veteran’s current hearing loss. Additionally, the March 2017 VA examination determined that tinnitus is more likely than not a symptom of the Veteran’s hearing loss. Entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. Finally, the evidence of record indicates that the Veteran’s tinnitus and bilateral hearing loss began within a few years of the March 2017 VA examination. Thus, the bilateral sensorial hearing loss and tinnitus do not fall under the definition of a chronic disease under 38 C.F.R. § 3.309(a), and, thus, service connection under 38 C.F.R. § 3.303(b) is not warranted. REASONS FOR REMAND Entitlement to service connection for sinusitis and/or allergic rhinitis is remanded. Although one of the Veteran’s claim was initially limited to the question of entitlement to service connection for sinusitis, the medical evidence reflects a diagnosis of allergic rhinitis. Therefore, the Board broadened the appeal to include service connection for that issue. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). Prior to the January 2018 rating decision on appeal, the Veteran identified relevant outstanding treatment records from 1975. See November 2017 Private Examination. A remand is required to allow VA to obtain these records as a pre-decisional duty to assist error has been identified. Entitlement to service connection for asthma and associated COPD; an acquired psychiatric disorder, to include anxiety and depression, and to include as secondary to asthma; and obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. Prior to the January 2018 rating decision on appeal, the Veteran identified relevant outstanding treatment records for asthma and COPD, noting that he had been diagnosed with the disorders in 1975. See November 2017 Private Examination; March 2017 VA Examination. Additionally, the Veteran identified relevant outstanding treatment records for obstructive sleep apnea in 2013 and 2015. Id. A pre-decisional duty to assist error has been identified and a remand is appropriate. Additionally, February 2017 VA treatment records and November 2017 private medical records indicate that the Veteran’s anxiety may be related to his asthma and COPD, and November 2017 private medical records indicate obstructive sleep apnea developed secondary to his anxiety disorder. Therefore, all of these issues (respiratory, psychiatric, and sleep apnea) are intertwined. A remand is required to allow VA to obtain any outstanding records. The matters are REMANDED for the following action: 1. Obtain VA treatment records since March 2019 and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for the following records: • 1975 treatment records reflecting a diagnosis of sinusitis or allergic rhinitis; • 1975 treatment records reflecting a diagnosis of asthma or COPD; and • 2013 and 2015 treatment records and/or sleep studies addressing the Veteran’s obstructive sleep apnea. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. J. Nichols Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.