Citation Nr: 21006864 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-21 378 DATE: February 5, 2021 ORDER New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a sleepwalking disorder. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for bilateral hearing loss. Entitlement to service connection for a sleepwalking disorder is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A March 1996 rating decision denied entitlement to service connection for a sleepwalking disorder and hearing loss. The Veteran did not appeal that decision and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the March 1996 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for a sleepwalking disorder and hearing loss. 3. There is clear and unmistakable evidence that the Veteran’s sleepwalking disorder pre-existed service. 4. There is not clear and unmistakable evidence that the Veteran’s sleepwalking disorder was not aggravated by active service. 5. The Veteran’s sleepwalking disorder had its onset during active service. 6. The Veteran’s bilateral hearing loss had its onset during active service. 7. The Veteran’s tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The March 1996 rating decision denying service connection for a sleepwalking disorder and hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a sleepwalking disorder and hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The presumption of soundness is not rebutted and the criteria for entitlement to service connection for a sleepwalking disorder are met. 38 U.S.C. §§ 1110, 1111, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1971 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran’s representative waived RO consideration of additional CAPRI records uploaded to his file after the March 2016 Statement of the Case. 38 C.F.R. § 20.1305(c). 1. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a sleepwalking disorder. 2. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for bilateral hearing loss. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In November 1995, the Veteran filed a claim for service connection for a sleepwalking disorder and hearing loss. In March 1996, the RO issued a rating decision denying the Veteran’s claim for service connection for a sleepwalking disorder on the basis that sleepwalking “is considered a congenital or developmental defect which is unrelated to military service and not subject to service connection.” The March 1996 rating decision further based its denial of service connection on the fact that the Veteran’s “enlistment examination noted a history of sleepwalking.” With regards to hearing loss, the RO denied the claim for lack of a current diagnosis. The Veteran did not file a Notice of Disagreement (NOD) within one year of notification of the March 1996 denial, and new and material evidence was not received within this period. Accordingly, the March 1996 rating decision is final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence received more than one year after the March 1996 rating decision includes multiple VA treatment records documenting the Veteran’s ongoing reports of sleepwalking and a diagnosis of a non-congenital sleepwalking disorder. See, e.g., May 2016 VA treatment record (diagnosing sleepwalking disorder). Additionally, a March 2015 VA audiological examination report reflects a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. These records are new in that they were not considered in the March 1996 denial. These records are also material in that they relate to a current diagnosis of hearing loss and address the nature and etiology of the Veteran’s sleepwalking disorder, indicating that the disability is not congenital. Furthermore, the treatment records indicate that the Veteran’s medical providers believe his disorder could be related to sleep apnea or benefit from sleep apnea treatment. See November 2016 VA Pulmonary outpatient note (indicating Veteran did not complete sleep study as advised and noting sleep apnea treatment could assist sleepwalking issues); October 2016 VA note (indicating Veteran’s disability warrants evaluation for sleep apnea); August 2016 VA Pulmonary consult (suggesting it could be related to sleep apnea). Therefore, the previously denied claims are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 3. Entitlement to service connection for a sleepwalking disorder is granted. The Veteran asserts that his active military service aggravated his sleepwalking disorder, which he experienced rarely before service. See May 2016 VA Form 9. A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability pre-existed service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). In this case, there is a question as to whether the Veteran’s sleepwalking disorder preexisted his military service. In this regard, the Board notes that on the Veteran’s April 1971 enlistment Report of Medical History, he endorsed a history of sleepwalking. The record also contains a November 1973 letter written by the Veteran’s mother indicating that he exhibited sleepwalking growing up and occasionally during his adult years. However, the Veteran’s April 1971 entrance examination is absent of any mention of sleepwalking or a related disorder on physical examination. In other words, the Veteran’s sleepwalking disorder was only noted by history. Thus, with respect to the Veteran’s sleepwalking disorder, the presumption of soundness attaches, and VA must demonstrate by clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. See Wagner, supra. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran’s April 1971 enlistment Report of Medical History endorsed a history of sleepwalking, the November 1973 letter written by the Veteran’s mother indicated he exhibited sleepwalking growing up, and the Veteran himself, in statements and testimony, indicated that when he joined the Navy he had rare episodes of sleepwalking. See May 2016 VA Form 9; See Board Hearing Transcript (Tr.) at 12. Therefore, the Board finds that there is clear and unmistakable evidence that the Veteran’s sleepwalking disorder preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Specifically, the Veteran’s mother’s November 1973 letter indicated that his sleepwalking was aggravated by times of stress. In the December 2020 hearing, the Veteran testified that his sleepwalking was aggravated by stress and he attributed in-service incidents of sleepwalking to service-related stress. See Board Hearing Tr. at 12-14. This is confirmed by the Veteran’s service treatment records, which show he was diagnosed with somnambulism in October 1973 and recommended for discharge as a result of the same. The diagnosis of a sleep disorder during service supports in-service aggravation. Therefore, the Board cannot find there is clear and unmistakable evidence that pre-existing sleep disorder was not aggravated by service, and the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Thus, this case turns on a current disability and evidence that the current disability was caused, incurred, or otherwise related to service, also known as a nexus. The Veteran’s VA treatment records establish a current diagnosis of a sleepwalking disorder. Specifically, an April 2016 VA treatment record indicates the Veteran reported sleepwalking 1-2 times per week. May and August 2016 VA treatment records provide a diagnosis of a sleepwalking disorder. Although the May 2015 VA examination stated that the Veteran did not have a sleepwalking disorder, that opinion was based on an incorrect factual basis in that the examiner relied on the Veteran’s report that he was unsure whether he still sleepwalks, which is clearly not the case per other contemporaneous VA treatment records. Thus, the May 2015 VA examination lacks probative value, and the first element of service connection, a current disability, is met. Although there is no medical nexus opinion of record, one is not required, as the Veteran is competent to establish that his sleepwalking disorder, which was dormant at service entrance, first manifest on active duty in October 1973 and has continued to the present. At the December 2020 hearing, the Veteran reported that he continues to experience incidents of sleepwalking, and in multiple other statements of record he consistently indicates an onset of his sleeping disorder in 1973. See May 2016 VA Form 9 (indicating that before service he had rare episodes of sleepwalking and that military service aggravated the disability); February 2015 VA Form 21-526 (indicating sleepwalking started in 1973); November 1995 VA Form 21-526 (indicating sleepwalking started in 1973). As the competent and credible lay evidence of record establishes that the Veteran manifested a sleepwalking disorder in service and has continued to experience that disorder to the present, nexus to service based on continuous symptomatology is established, and the benefit sought on appeal is granted. 4. Entitlement to service connection for bilateral hearing loss is granted. 5. Entitlement to service connection for tinnitus is granted. The Veteran relates his hearing loss and tinnitus to the hazardous noise he was exposed to aboard a ship on active duty. See June 2015 NOD. Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including tinnitus and hearing loss (categorized as an organic diseases of the nervous system), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding element one of service connection for tinnitus, the presence of a current disability, tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layperson such as the Veteran, is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). A March 2016 VA treatment note indicates the Veteran denied tinnitus; however, that is the only instance where the Veteran denied tinnitus and the bulk of the record contains credible and consistent reports of tinnitus. See December 2020 Hearing transcript at 6-7; June 2015 NOD; May 2015 VA examination; February 2015 VA Form 21-526; January 1996 VA examination; November 1995 Veteran Correspondence; see also May 2014 VA primary care physician note (indicating he has tinnitus). As the Veteran has competently and credibly reported tinnitus, the first element with respect to service connection for tinnitus is met. Regarding element one of service connection for bilateral hearing loss, a May 2015 VA audiology examination report reveals that the Veteran has a diagnosis of sensorineural bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of service connection with respect to bilateral hearing loss is met. Regarding element two of service connection, the incurrence of disease or injury in service, the Veteran testified at the December 2020 hearing that his military occupational specialty (MOS) was a Quarter Master aboard a ship and he was in close contact with missiles and the ship’s engines. See Board Hearing Tr. at 3-7. The Veteran testified that he slept just behind where the missiles were kept and he was exposed to hazardous noise from the missiles and from water rushing against the ship. See id. at 3. The Veteran also had to wind the clocks in the ship’s engine rooms once per week, which the Veteran described as being very loud. See id. at 5. He was not provided hearing protection aboard the ship. Id. Based on the Veteran’s reports of his duties aboard a ship, acoustic trauma in service is conceded as consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, the second element of service connection is met. Thus, the only remaining element is a link between the Veteran’s disabilities and the in-service event, otherwise known as a nexus. There is only one medical opinion of record concerning nexus; however, it lacks probative value. Specifically, in May 2015, a VA examiner stated that she could not provide an etiology opinion with respect to hearing loss and tinnitus without resorting to speculation because the Veteran’s STRs documented normal hearing and his MOS had a low probability of hazardous noise exposure. The Board finds the May 2015 nexus opinion inadequate, as the examiner based her opinion on the absence of documented tinnitus and hearing loss in service and failed to consider the possibility of delayed onset tinnitus and hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). The May 2015 examiner also failed to consider the Veteran’s competent and credible reports of his tinnitus and hearing loss beginning in service. For these reasons, the May 2015 nexus opinion is of no probative value. However, remand is unnecessary to correct this deficiency, as the Veteran himself has provided competent evidence of a nexus, as he has consistently reported that his tinnitus and hearing loss began during service around 1973 and has continued to the present, to include in his original 1995 claim for hearing loss. See, e.g., Hearing transcript at 6-8 (testifying that he noticed tinnitus and hearing loss around 1973 and it has progressively worsened to the present); May 2015 VA examination (Veteran reporting tinnitus began around time of separation from service); November 1995 VA Form 21-526 (stating his hearing loss started in 1972-1973); November 1995 Veteran Correspondence (stating his hearing loss and ringing in ears started in 1972-1973 and continued to present). The record contains one instance where the Veteran contradicted his claim of tinnitus beginning in service. See January 1996 VA examination (indicating the Veteran reported he “thought” his tinnitus began about 5 years ago). The Board finds this one instance does not impeach the Veteran’s credibility., as all of the Veteran’s other reports consistently relate the onset of tinnitus to the end of his service period. Accordingly, he has provided competent and credible evidence regarding continuity from incurrence of the tinnitus and hearing loss in service to the present, continuity of symptomatology is shown, and presumptive service connection for tinnitus and hearing loss is warranted. Fountain, 27 Vet. App. at 272; Walker, 708 F.3d at 1333; 38 C.F.R. §§ 3.307, 3.309. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.