Citation Nr: 20011978 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 17-25 389 DATE: February 13, 2020 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left hand disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran’s tinnitus first manifested in service and was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from January 1973 to March 1994. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing has been associated with the claims file. Service Connection for Tinnitus—Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he is entitled to service connection for tinnitus as a result of noise exposure in service. As an initial matter, the Board observes that the record, to specifically include the Veteran’s lay statements and a December 2019 VA audiological assessment note, reflects a current diagnosis of tinnitus. Additionally, in-service noise exposure consistent with the Veteran’s military occupational specialty of mechanical maintenance supervisor. See also January 2020 Board Hearing Transcript (Veteran reported that he worked in the maintenance shop and was exposed to loud noise from engines). Therefore, the Veteran’s claim turns upon whether his tinnitus was incurred in service or is otherwise related to his in-service noise exposure. In this regard, VA treatment records show that the Veteran has “chronic tinnitus.” See e. g., January 2018 VA treatment record. A separate January 2018 VA audiology note indicated that the Veteran had experienced constant tinnitus for the past 40 years. He also indicated that he was in the service for 22 years and was exposed to “a significant amount of noise” while working around tanks. During a December 2019 VA audiological assessment note, the Veteran again reported having constant tinnitus for over 40 years. The Veteran was afforded a VA examination in October 2015 to address the etiology of his tinnitus. At such time, the Veteran reported that his tinnitus began in approximately 2000. During the January 2020 Board hearing, the Veteran indicated that he first noticed his tinnitus in service while working in the maintenance shop and after being exposed to loud equipment. The Board finds that the Veteran is competent to report the onset of his tinnitus as his symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002) (Court determined that tinnitus is the type of disorder associated with symptoms capable of lay observation). The Board has no reason to doubt the credibility of such assertion. Most of the Veteran’s reports have indicated that his tinnitus began approximately 40 years ago as a result of exposure to significant amounts of noise in service. Accordingly, upon review of all evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus after service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). In summary, the Board resolves any reasonable doubt in the Veteran’s favor to find that symptoms of tinnitus first manifested in service and were incurred in service. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. The appeal is granted. REASONS FOR REMAND Hearing Loss The Veteran was initially denied service connection for hearing loss because the evidence did not show that he had a hearing loss disability for VA compensation purposes. Newly received VA treatment records show that the Veteran was afforded an audiological assessment in December 2019. The report confirmed hearing loss for VA compensation purposes in both ears as the auditory threshold at frequencies of 3,000 and 4,000 Hertz was 40 decibels or greater. During the January 2020 Board hearing transcript, the Veteran testified that he had symptoms of hearing loss and tinnitus in service, which had progressively worsened throughout the years. Given the new diagnosis of hearing loss, a new VA examination and medical opinion should be obtained. Left Shoulder The Veteran seeks service connection for a left shoulder disorder as he maintains his symptoms first manifested in service. VA treatment records show that the Veteran has been found to have arthritis in both shoulders. See e. g., July 2017 VA treatment record (noting a past medical history of “arthritis in hands and shoulders”). Service records include a March 1988 note where the Veteran was seen for a muscle strain near the left breast. He reported that he felt a muscle strain while lifting weights and now had difficulty lifting his arm and abducting the arm. The Veteran was assessed as having a muscle strain. One month later, in April 1988, the Veteran still complained of pain under the left axilla. The Veteran has not been afforded a VA examination pertaining to the left shoulder. Given the Veteran’s reports, in addition to service records showing treatment for a left shoulder disorder, the Board finds that a VA examination and medical opinion should be obtained. Left Hand VA treatment records show that the Veteran has been found to have arthritis in both hands. See e. g., July 2017 VA treatment record (noting a past medical history of “arthritis in hands and shoulders.” The Veteran has already been awarded service connection for residuals of a right hand fracture. As it pertains to the left hand, the Veteran has indicated that his arthritis developed as a result of excessive use of the hands due to his military occupation specialty (mechanical maintenance) and physical training, to include in cold weather. See VA Form 9. During the January 2020 Board hearing, the Veteran reported that he broke a bone in his left hand in service; however, service records show that the fracture was to the right hand. No fracture, or other treatment, is documented in service treatment records as it relates to the left hand. The Veteran has not been afforded a VA examination pertaining to the left hand. Given the Veteran’s reports of extensive use of his hands in service, in addition to current medical records showing arthritis in both hands, the Board finds that a VA examination and medical opinion should be obtained. OSA VA treatment records confirm a diagnosis of OSA, determined by a split-night polysomnogram in November 2012. See March 2017 VA sleep-outpatient consult note. During the January 2020 Board hearing, the Veteran reported that his OSA symptoms first manifested in service, including snoring, chocking, and trouble breathing during sleep. The Veteran also submitted a November 2013 statement from Mr. [REDACTED], who served with the Veteran from 1981 to 1984. Mr. [REDACTED] indicated that the Veteran was “one of the loudest snorers that I have ever heard.” The Veteran has not been afforded a VA examination pertaining to his diagnosed OSA. Given the Veteran’s reports, in addition to Mr. [REDACTED] statement, the Board finds that a VA examination and medical opinion should be obtained. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s updated VA treatment records and associate them with the claims file. 2. Then, schedule a VA audiological examination to determine the nature and etiology of the Veteran’s hearing loss. The entire claims file must be reviewed in conjunction with the examination. (a.) The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss was incurred in or is otherwise related to the Veteran’s active military service. *In formulating a negative medical opinion, if relying to any extent upon the IOM study, the examiner must identify the medical text’s qualifying or contradictory aspects (i. e., There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure). (b.) The examiner must provide a complete rationale for all proffered opinions. 3. Schedule a VA examination to determine the nature and etiology of the Veteran’s left shoulder disorder. The entire claims file must be reviewed in conjunction with the examination. (a.) List all current diagnoses pertaining to the Veteran’s left shoulder. (b.) For each diagnosis, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left shoulder disorder was incurred in or is otherwise related to the Veteran’s active military service. *Please address the March and April 1988 service treatment records. (c.) The examiner must provide a complete rationale for all proffered opinions. 4. Schedule a VA examination to determine the nature and etiology of the Veteran’s left hand disorder. The entire claims file must be reviewed in conjunction with the examination. (a.) List all current diagnoses pertaining to the Veteran’s left hand. (b.) For each diagnosis, the examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left hand disorder was incurred in or is otherwise related to the Veteran’s active military service. (c.) The examiner must provide a complete rationale for all proffered opinions. 5. Schedule a VA examination to determine the nature and etiology of the Veteran’s obstructive sleep apnea disorder. The entire claims file must be reviewed in conjunction with the examination. (a.) The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA was incurred in or is otherwise related to the Veteran’s active military service. *Please address the Veteran’s statements regarding the onset of his symptoms as having first manifested in service; see also the November 2013 statement from Mr. [REDACTED]. (b.) The examiner must provide a complete rationale for all proffered opinions. 6. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.