Citation Nr: 21062530 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-40 545 DATE: October 7, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a right ankle disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a right ear hearing loss disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the January 1982 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a right ankle disability. 2. The evidence associated with the claims file since the November 1988 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a right ear hearing loss disability. 3. The evidence associated with the claims file since the May 1985 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a left ear hearing loss disability. 4. Resolving reasonable doubt in his favor, the Veteran's bilateral hearing loss disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a right ankle disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for reopening a previously denied claim of service connection for a right ear hearing loss disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for reopening a previously denied claim of service connection for a left ear hearing loss disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 4. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1976 to April 1982. He had additional periods of active service in the Army Reserve and Reserve Officers Training Corps (ROTC). The case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Claim to Reopen Right Ankle Disability In a final January 1982 decision, the RO denied the Veteran's claim for service connection for a right ankle disability because the evidence did not show that he had a current disability. The Board finds that new and material evidence has been received to reopen the claim for service connection for a right ankle disability. A December 2015 private treatment record indicated that the Veteran had a right ankle sprain, right sinus tarsi syndrome, and ankle joint pronation, i.e., evidence of a current disability. The Board finds that evidence new and material. Therefore, the claim is reopened. Claims to Reopen Bilateral Hearing Loss In a May 1985 decision, the RO denied the Veteran's claim for service connection for bilateral hearing loss because the evidence did not show that he had a current disability. The Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued in August 1985. In December 1985, he filed a substantive appeal (VA Form 9), appealing the issue of entitlement to service connection to a right ear hearing loss disability to the Board. In a November 1988 decision, the Board denied the Veteran's claim for service connection for a right ear disability because the evidence did not show that the disability was incurred in or aggravated by active service. The Board finds that new and material evidence has been received to reopen the claims for service connection for right and left ear hearing loss disabilities. In an August 2021, a private physician, Dr. R.B., opined that it was likely that the Veteran's hearing loss was 50 percent or more the result of exposure to combat arms while in the military. In addition, a December 2018 VA audiology evaluation indicated that his hearing loss met VA's threshold to be considered a disability under 38 C.F.R. § 3.385. The Board finds that evidence new and material. Therefore, the claims are reopened. Service Connection Bilateral Hearing Loss The Veteran maintains that his current bilateral hearing loss disability is related to noise exposure during active service. There are specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the evidence demonstrates that the Veteran hearing loss meets the minimum threshold requirements to be considered a disability under 38 C.F.R. § 3.385. In this regard, a December 2018 VA audiology evaluation indicated that auditory thresholds were 45 decibels at 500 Hertz in both ears. 38 C.F.R. § 3.385. In addition, his assertions that he was exposed to loud noise as a tank crewman are consistent with his service. Therefore, a current disability and in-service noise exposure are conceded. The remaining and dispositive question is whether the Veteran's current bilateral hearing loss is etiologically related to in-service noise exposure. The Veteran's service treatment records during active service from August 1976 to April 1982 are unremarkable for any complaints, treatment, or diagnoses related to hearing loss. At his July 1976 enlistment examination, auditory thresholds in the right ear were 25 and 30 Hertz at 500 and 1000 decibels, respectively. In the left ear, he had an auditory threshold of 25 Hertz at 500 decibels. Although those results indicated some degree of hearing loss, hearing loss was not noted on his enlistment examination report. At his February 1982 separation examination, auditory thresholds for the right ear were 25, 35, 25, and 30 decibels at 500, 1000, 4000, and 6000 Hertz. Left ear auditory thresholds were 25 and 35 decibels at 500 and 6000 Hertz. Although those results indicated some level of hearing loss, hearing loss was not noted on his separation examination report. At a July 23, 1984 audiology evaluation at a military facility, it was noted that the Veteran had bilateral mild sensorineural hearing loss, worse in the right ear. At a February 1984 examination for ROTC, an audiology evaluation indicated that his right ear had auditory thresholds of 35 and 25 at 1000 and 6000 Hertz. His left ear had an auditory threshold of 25 at 500 Hertz. On his Report of Medical History, he indicated that he was told he had hearing loss in 1983. In October 1985, the Veteran was awarded Workers' Compensation from July 23, 1984 to August 28, 1984, for right ear hearing loss due to exposure to hazardous noise while in the ROTC program. At the July 2021 Board hearing, the Veteran stated that he first noticed hearing loss during active service when he was on a tanker. He stated that he had trouble hearing people and that he had to turn the television up real loud and get close to it. The Veteran is competent to identify hearing loss, including onset and continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board has no reason to doubt the credibility of his statements that he experienced hearing loss during active service and that those symptoms have continued since service. In an August 2021 letter, a private physician, Dr. R.B., opined that it was likely that the Veteran's hearing loss was 50 percent or more the result of exposure to combat arms while in the military. There are no medical opinions to the contrary. Based on the foregoing, the Board finds that the evidence for and against the claims for service connection for bilateral hearing loss are at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. In October 2020, the Veteran indicated that he received treatment at the VA facilities in Dallas, Atlanta, and Las Vegas. Although he submitted portions of those treatment records, including a July 2019 VA examination report for PTSD, it is unclear whether complete copies of his VA treatment records have been associated with the claims file. Therefore, a remand is required so that those records can be obtained. In addition, an attempt should be made to obtain any outstanding private treatment records from Kaiser Permanente. Regarding the Veteran's claim for service connection for a psychiatric disability, during the July 2021 Board hearing, he stated that he was sent to a psychologist while in Germany because he was told that he was "out of control." Although the Veteran's service treatment records have been obtained, the RO has not requested any inpatient treatment records (clinical records) that may be stored separately. Therefore, the Board finds that a remand is necessary so that an attempt can be made to obtain any records that may exist during active service. Furthermore, the Veteran maintains that his psychiatric disability is related to stressors that occurred during active service. One stressor, involving an injury to another soldier's arm, has been verified. In July 2018, he also indicated that he witnessed two soldiers fighting over a drug deal gone bad and that there was a stabbing. He indicated that one of the soldiers involved was a friend (J.S.) and that the incident occurred in November 1978. It does not appear that any attempts have been made to verify that reported stressor. Therefore, the Board finds that a remand is necessary. A May 2016 VA examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-5, but instead met the criteria for an unspecified depressive disorder. The examiner opined that the depressive disorder was not incurred in or related to service. In October 2020, the Veteran submitted a copy of a July 2019 VA examination report. In that report, a VA examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-5, but instead met the criteria for an unspecified trauma and stressor related disorder. The examiner did not provide an opinion as to whether that diagnosis was related to service. Therefore, the Board finds that a remand is necessary for an additional VA examination to clarify the nature and etiology of the Veteran's claimed psychiatric disability. Regarding the Veteran's claim for service connection for a right ankle disability, his service treatment records indicated that he sustained a right ankle sprain in 1976, and private treatment records indicated that he has a current right ankle disability. Therefore, the Board finds that remand is necessary for a VA examination to determine the nature and etiology of his claimed right ankle disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ should attempt to obtain any separately stored inpatient treatment records (clinical records) during the Veteran's service in Germany. 2. Identify and obtain any pertinent, outstanding VA and private treatment records, to include treatment records from VA facilities in Dallas, Atlanta, and Las Vegas; a July 2019 VA examination report for PTSD; and private treatment records from Kaiser Permanente. 3. Attempt to verify the Veteran's in-service stressor that he reported in July 2018, through appropriate sources. Specifically, the AOJ should verify whether a stabbing occurred involving J.S., as described by the Veteran, in November 1978 and whether he on duty there at that time. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any psychiatric disorder that may be present. Any indicated studies should be performed. After examining the Veteran, and considering his pertinent medical history and lay statements regarding reported symptoms, the examiner should identify all psychiatric disorders that are present. For each diagnosis identified other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the disorder manifested during active service or is otherwise causally or etiologically related to his active service. With respect to PTSD, the examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the current symptomatology is causally or etiologically related to any verified in-service stressor. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any right ankle disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present right ankle disability is etiologically related to the Veteran's active service, to include a right ankle sprain therein. A rationale for all opinions expressed must be provided. 6. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 7. Then, readjudicate the issues remaining on appeal and allow appropriate time for response. Then, if warranted, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.