Citation Nr: 20007296 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-51 824 DATE: January 28, 2020 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for unstable angina, due to herbicide agent exposure is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a bilateral eye condition, to include as secondary to hypertension is remanded. Entitlement to service connection for bilateral lung condition is remanded. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities is remanded. Service connection for peripheral neuropathy, bilateral lower extremities is remanded. Entitlement to service connection for skeletal arthritis is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for erectile dysfunction, secondary to an acquired psychiatric disorder, to include associated medication. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss is related to in-service acoustic trauma. 2. The Veteran served in Vietnam and has ischemic heart disease, diagnosed as unstable angina. 3. The evidence is approximately balanced as to whether the Veteran’s current obstructive sleep apnea had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). 2. The criteria for service connection for unstable angina, on a presumptive basis, have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U. S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to February 1973, including service in Vietnam. His awards include the Combat Action Ribbon. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. A claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the multiple psychiatric symptoms and diagnoses in this case, the Board has recharacterized the psychiatric claim more broadly. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)). In addition, 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The enumerated diseases which are deemed to be associated with herbicide agent exposure include unstable angina (which is identified as a type of ischemic heart disease). Id. 1. Right Ear Hearing Loss The Veteran contends that his right ear hearing loss is related to in-service acoustic trauma. For the following reasons, the Board finds that service connection for right ear hearing loss is warranted. In this case, the evidence of record, particularly a November 2019 private treatment record, reflects current right ear hearing loss disability. The audiometric scores on the examination reflect thresholds at 40 decibels or greater at multiple frequencies in the right ear. Thus, the first element of service connection has been met. The Veteran’s service treatment records (STRs) are negative of complaints, treatment, or findings of right ear hearing loss. At his September 2019 Board hearing, the Veteran testified that he started having hearing loss problems in service. The Veteran indicated that he was exposed to military noise without hearing protection. He noted that he did not have hearing problems prior to service, and his hearing loss has been deteriorating since service. An October 2015 VA examination report indicates that the Veteran reported exposure to weapon fire and heavy equipment noise without the use of hearing protection. The Veteran’s DD Form 214 shows that his military occupation specialty was an electrician. The Board finds the statements of the Veteran to be competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, in-service noise exposure is established. In October 2015, the Veteran underwent a VA audiological examination. Upon evaluation, the Veteran did not have right ear hearing loss for VA purposes. However, an November 2019 private audiological examination shows that the Veteran has current right ear hearing loss disability for VA purposes. Specifically, audiometric thresholds were 40 decibels or greater at multiple frequencies in the right ear. Private Dr. K.M. opined that the Veteran’s hearing loss is at least as likely as not related to acoustic trauma from military noise exposure. Dr. K.M. explained that the Veteran reported a decrease in hearing during active duty. The Veteran’s hearing loss noted on examination is consistent with noise induced hearing loss and is beyond the normal progression for age. As Dr. K.M. explained the reasons for her conclusions based on an accurate characterization of the evidence of record and general medical principles, her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. The Veteran’s current right ear hearing loss diagnosis, private nexus opinion, combined with the remaining evidence discussed above provides a sufficient basis to grant service connection for right ear hearing loss. Thus, service connection for right ear hearing loss is warranted. 2. Unstable Angina The evidence of record indicates that the Veteran has current ischemic heart disease, diagnosed as unstable angina. Specifically, a July 2016 private treatment record shows a diagnosis of unstable angina. Thus, the current disability requirement has been met. The Veteran’s DD Form 214 show the he served on active duty in Vietnam and received the Vietnam Service Medal and Republic of Vietnam Campaign Medal with Device. Therefore, he is presumed to have been exposed to Agent Orange. As the Veteran currently has ischemic heart disease (diagnosed as unstable angina) and is presumed to have been exposed to herbicide agents in Vietnam, service connection for unstable angina is warranted on a presumptive basis. 3. Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea is related to active service. For the following reasons, the Board finds that service connection for obstructive sleep apnea is warranted. The evidence of record indicates that the Veteran has a current obstructive sleep apnea disability. Specifically, an October 2019 private treatment record indicates that the Veteran underwent a sleep study and a diagnosis of moderate obstructive sleep apnea was noted. Thus, the first requirement for service connection has been met. With respect to the in-service disease requirement, STRs are negative of complaints, treatment, or findings of obstructive sleep apnea. At his September 2019 Board hearing, the Veteran testified that he experienced sleep problems in service, and shipmates stated that they could hear him snoring loudly. He indicated that he told someone that he was having sleep problems but did not go to sick bay to be put on light duty. The Veteran noted not having sleep problems prior to service, and the continuation of sleeping problems since service. The Veteran further noted that he sought treatment shortly after service, as he was having trouble breathing during sleep. The Board finds the Veteran’s statements credible and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Based on the Veteran’s competent and credible statements, the Board finds that the second element of service connection for obstructive sleep apnea has been met. The evidence of record also indicates that the third element of a nexus has been met. The Veteran’s lay testimony indicating symptoms in and since service, combined with the diagnosis of sleep apnea shortly after service, is sufficient to establish that the Veteran’s sleep apnea had its onset in service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)( [N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself ); 38 C.F.R. § 3.303(a) ( service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). There is no evidence to the contrary. For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diagnosed obstructive sleep apnea is related to service. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Hypertension The Veteran is presumed to have been exposed to an herbicide agent. In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e). Hypertension is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide agent exposure. See 38 C.F.R. § 3.309 (e). Although hypertension has been moved from the limited or suggestive category to the category of sufficient evidence of an association, see Veterans and Agent Orange: Update 11 (2018), it has not yet been added to the list of diseases presumed service connected in veterans exposed to herbicide agents. Thus, entitlement must be shown on an actual causation basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). At his September 2019 Board hearing, the Veteran testified that he was having blood pressure problems in service but did not go to sick bay for treatment. The Veteran noted that he had high blood pressure for a few years but did not seek treatment right away. He indicated that when he sought treatment after service, he was prescribed medication and has continuously taken medication since service. A July 2016 private treatment record shows the Veteran has a significant history of hypertension. The current blood pressure reading was noted as 110/80. An August 2019 private treatment record shows the Veteran’s current blood pressure readings were 134/64 and 136/60. As the evidence is unclear as to whether the Veteran has hypertension, a VA examination is warranted with a medical opinion on this question. 2. Bilateral Eye Condition The Veteran contends that his bilateral eye condition is due to his military service. In an alternative theory, he contends that his bilateral eye condition is secondary to his hypertension. At his September 2019 Board hearing, the Veteran testified that he experienced redness, irritation, and blurriness in his eyes during service, and the continuation of such symptoms since service. He indicated that his eyes bothered him and remained irritated and red due to working in the forward engine aboard ship. The Veteran also noted that his eyes were blurry due to his high blood pressure. An October 2019 private treatment record shows that upon evaluation the Veteran’s bilateral eyes exhibited open angle with borderline findings and low glaucoma risk, posterior vitreous detachment, and combined forms of age-related cataracts. The above reflects that the Veteran has persistent or recurrent symptoms of disability, that may be associated with service, but the Veteran has not been afforded a VA examination in conjunction with his bilateral eye condition claim. The Veteran should therefore be scheduled for a VA examination and an etiological opinion should be obtained as to whether any bilateral eye disability is related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the bilateral eye condition claim may be significantly impacted by the pending hypertension claim referenced above and is therefore inextricably intertwined. See e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that when a determination on one issue could have a significant impact on the outcome of another issue, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). 3. Bilateral Lung condition At his September 2019 Board hearing, the Veteran testified that aboard ship, he started experiencing shortness of breath because of his lungs. He indicated that breathing was more difficult below the water line and depending on the heat in the South Pacific. The Veteran noted that he did not have breathing problems prior to service and has continuously received treatment for breathing problems since service. The above reflects that the Veteran has persistent or recurrent symptoms of disability, that may be associated with service, but the Veteran has not been afforded a VA examination in conjunction with his bilateral lung condition claim. The Veteran should therefore be scheduled for a VA examination and an etiological opinion should be obtained as to whether any bilateral lung disability is related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Bilateral Upper Extremities/ Bilateral Lower Extremities/ Skeletal Arthritis At his September 2019 Board hearing, the Veteran testified that he experienced peripheral neuropathy of upper and lower extremity numbness, tingling, and burning in service, and has continued to experience such symptoms since service. He also testified that he experienced arthritis in his hips, knees, and arms in and since service. The Veteran noted that his doctors gave him a general diagnosis of arthritis for all joints. The above reflects that the Veteran has persistent or recurrent symptoms of disability, that may be associated with service, but the Veteran has not been afforded a VA examination in conjunction with his bilateral upper extremities, bilateral lower extremities, and skeletal arthritis claims. The Veteran should therefore be scheduled for a VA examination and an etiological opinion should be obtained as to whether any bilateral upper extremities, bilateral lower extremities, and skeletal arthritis disabilities are related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. An Acquired Psychiatric Disorder/ Erectile Dysfunction In October 2015, the Veteran was afforded a VA examination. The examiner indicated that the Veteran did not have a diagnosis of PTSD, as he did not meet the diagnostic criteria under DSM-5. The examiner noted that the Veteran had no mental disorder diagnosis. At his September 2019 Board hearing, the Veteran testified that he has anxiety and major depression and is currently being treated with medication. As the evidence is unclear as to whether the Veteran has an acquired psychiatric disorder, a new VA examination is warranted with a medical opinion on this question. With respect to the erectile dysfunction claim, the Veteran contends that such condition is secondary to his anxiety and major depression medication. Because the erectile dysfunction claim will be significantly impacted by the pending claim referenced above, the claims are inextricably intertwined. See e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that when a determination on one issue could have a significant impact on the outcome of another issue, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Thus, the claim for service connection for erectile dysfunction must be remanded as well and an opinion obtained on the etiology of the Veteran’s erectile dysfunction. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any hypertension. The claims file should be reviewed by the examiner. The examiner should answer the following question: Is at least as likely as not (i.e., a 50 percent or greater probability) that a hypertension disability, is related to active service or any incident therein, to include his presumed exposure to herbicide agents. The fact that the Veteran may not have a disease presumed service connection in veterans exposed to Agent Orange should not be used as a reason for finding that this Veteran’s hypertension is not related to exposure to an herbicide agent. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 2. Schedule the Veteran for a VA examination as to the etiology of any bilateral eye disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. (a.) The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any diagnosed bilateral eye condition is related to his military service. (b.) The examiner should also offer an opinion as to whether any diagnosed bilateral eye condition is (a) caused or (b) aggravated by hypertension A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 3. Schedule the Veteran for a VA examination as to the etiology of his bilateral lung condition. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran’s bilateral lung condition is related to his military service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 4. Schedule the Veteran for a VA examination as to the etiology of his bilateral upper extremities, bilateral lower extremities, and skeletal arthritis disabilities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran’s bilateral upper extremities, bilateral lower extremities, or skeletal arthritis disabilities are related to his military service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 5. Schedule the Veteran for a VA examination by a psychiatrist to determine the nature and etiology of any acquired psychiatric disorder, to include anxiety, depression, and PTSD. The claims file should be reviewed by the examiner. For each identified psychiatric disorder, the psychiatrist should answer the following question: (a.) Whether it is at least as likely as not (at least a 50 percent probability) that such disorder had its onset in service or is otherwise related to military service. (b.) If PTSD is diagnosed, the examiner should indicate whether it is related to an in-service stressor. (c.) The psychiatrist should also offer an opinion as to whether the erectile dysfunction is either (a) caused or (b) aggravated by a psychiatric disorder, to include associated medication. A complete rationale should accompany any opinion provided. (Continued on the next page)   The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.