Citation Nr: 21015077 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-60 824 DATE: March 16, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for chronic sleep disturbance and chronic fatigue as symptoms of already service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for thoracic spine strain is remanded. FINDINGS OF FACT 1. Right ear hearing loss is related to in-service acoustic trauma. 2. Chronic sleep disturbance and chronic fatigue are symptoms of already service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection of chronic sleep disturbance and chronic fatigue, as symptoms of already service-connected PTSD, 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 with the United States Marine Corps from June 2012 to June 2016. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his wife testified at a March 2021 hearing at the RO held before the undersigned Veterans Law Judge (VLJ) via videoconference. This decision and remand are produced prior to the production of a transcript of that hearing. Given the favorable outcome of the decision, and that no final or adverse action is being taken at this time concerning the remand, the Veteran is not prejudiced. A transcript will be associated with the claims file once prepared. With respect to psychiatric disorders, a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). The Board has recharacterized the issue regarding chronic sleep disturbance and chronic fatigue to reflect such. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) 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). Right Ear Hearing Loss The Veteran contends that he is entitled to service connection for right ear hearing loss. The Veteran has a diagnosis of sensorineural hearing loss in the right ear for VA purposes under 38 C.F.R. § 3.385, which establishes existence of a present disability. Notably, the Veteran appears to have been afforded two different VA hearing loss examinations within roughly a week of one another in October 2016. One of the examinations documents hearing loss in the right ear that meets the threshold for hearing loss under 38 C.F.R. § 3.385 and the other does not. A Physician’s Assistant completed the first examination on October 14, 2016, noting that there was no hearing loss for VA purposes. However, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist. 38 C.F.R. § 4.85. The second examination completed October 24, 2016 was properly completed by an audiologist and documented hearing loss for VA purposes. Accordingly, the second examination is entitled to more probative weight. The Veteran was afforded an audiogram at enlistment in August 2011 and a reference audiogram in June 2012. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Although the enlistment examination notes a 25-decibel result at 500 Hertz in the right ear, neither of the October 2016 examiners found that hearing loss existed prior to service. A reference audiogram was completed in June 2012. Notably, this documented only 10-decible results at 500 Hertz, rather than the 25 decibel results noted upon enlistment. In April 2016, an in-service audiogram was completed, documenting a significant threshold shift in the right ear when compared to the reference audiogram. Additionally, the Veteran’s May 2016 separation audiogram shows that the right ear met the criteria for hearing loss under 38 C.F.R. § 3.385 at discharge. Furthermore, the Veteran’s military occupational specialty (MOS) was that of rifleman, which is associated with a high probability of hazardous noise exposure. The November 2016 VA treatment records report that the Veteran experienced a major acoustical event during one of his deployments, when team member fired a weapon just behind him on the right side. After this, he could not hear in the right ear for 3 days; he has also testified that such loss has continued to the present to some degree. Accordingly, an in-service injury is established. In the October 24, 2016 VA hearing loss examination, the examiner opined that based on the amount of noise exposure the Veteran would have experienced as a rifleman and the positive threshold shift noted during active duty, it is at least as likely as not that the Veteran’s hearing loss is related to noise exposure during service. Even in the October 14, 2016 examination, despite the findings that no current hearing loss was present for VA purposes, the examiner came to this same conclusion based on the documented in-service threshold shifts. Therefore, there is ample evidence of record to support a finding that the Veteran’s right ear hearing loss is related to in-service noise exposure. As such, service connection is warranted. Chronic Sleep Disturbance and Chronic Fatigue as symptoms of already service-connected PTSD The Veteran contends that he is entitled to service connection for both chronic sleep disturbance and chronic fatigue. The Veteran, through his prior representative, suggested that the Veteran was entitled to presumptive service connection for these conditions based on his service in the Persian Gulf War. However, in his March 2021 testimony, he made clear that the chronic sleep disturbance and chronic fatigue as described by the Veteran are symptoms of an acquired psychiatric disorder. As noted above, these two separate claims have been recharacterized to reflect this finding. In the Veteran’s April 2016 separation examination, he reported difficulty falling and staying asleep ever since his 2013 deployment to Afghanistan. The Veteran reported that he had tried over the counter Melatonin as treatment with success. The examiner noted that he had not been previously seen or treated for this issue. Roughly a month following his separation from service, the Veteran received treatment from a VA treatment facility. He reported that he was interested in a medication management program to assist with insomnia and night terrors. At this July 2016 appointment, the Veteran was described as having an adjustment disorder, with anxiety. In VA treatment records from September 2016, the Veteran further reported that he had struggled with sleep issues since being in the military. He reported struggling with falling asleep, but that use of pain medication to treat his service-connected back disability had allowed him to get 8-9 hours of sleep per night. The Veteran was initially afforded a VA Mental Disorders Examination in October 2016, however, at this time he was found not to have any diagnoses for mental disorders. It was noted that he denied mental health symptoms at the time, including any current problems with sleep. He reported that his back was painful and often got worse at night, but that he was currently on muscle relaxers and slept for 8-9 hours a night, feeling rested when he woke up. The Veteran was also afforded two Chronic Fatigue Syndrome (CFS) examinations in October 2016. Neither examiner found that a diagnosis for CFS was warranted, although both noted the Veteran’s complaints that his difficulty sleeping began during service and was improved by use of the muscle relaxers. In VA treatment records from April 2020, the Veteran was described as having PTSD symptoms with increased sleep disruption. He reported continued sleep disruption, described as "tossing and turning." He further reported that recently, his wife has woken him up at night due to behaviors in his sleep, including following an attempt to "throw a punch," and a separate attempt to place her in "a chokehold." He reported that even though he did not feel fully rested, he used to get 7-8 hours of sleep a night, whereas currently he was only getting 5 hours. He reported that he continued to struggle with fatigue during the day, as well as low motivation. In August 2020, the Veteran provided a July 2020 medical opinion from a private psychologist who found that he met the DSM-V criteria for PTSD. His symptoms included poor sleep initiation and awakening in the night, as well as chronic sleep impairment. The Veteran was subsequently afforded a VA PTSD examination in August 2020, at which time a PTSD diagnosis with Major Depressive Disorder, Recurrent, Moderate, was confirmed. Insomnia and lack of energy were found to be associated with these diagnoses. Chronic sleep impairment was identified as a symptom. In conjunction with the examiner’s positive nexus opinion, she noted that the Veteran no longer met the criteria for an adjustment disorder, as identified in the September 2016 VA treatment records. Rather, his symptoms were best explained by a diagnosis of PTSD and Major Depressive Disorder. In their testimony, the Veteran and his wife described his continuous fatigue and tiredness in connection with his difficulty sleeping. He has trouble falling and staying asleep, and has disturbances from nightmares which prevent his sleep from being restful. Accordingly, although the PTSD diagnosis was not confirmed until 2020, the Veteran’s VA treatment records and the August 2020 VA PTSD examination support the finding that the Veteran had an acquired psychiatric disorder prior to this time. Although the Veteran has reported periods during which he had less trouble sleeping due to taking muscle relaxants, he has otherwise consistently reported these symptoms since military service, and the evidence, both lay and medical, associates them with his service-connected PTSD. Accordingly, the Board finds that entitlement to service connection for chronic sleep disturbance and chronic fatigue, is warranted, as they are clearly associated with his service-connected PTSD. Moreover, in claiming these symptoms, later identified as manifestations of his psychiatric disorder, the Veteran was effectively claiming service connection for his PTSD (or any other diagnosed acquired psychiatric disorder) as of May 23, 2016, while still on active duty as part of his transition. REASONS FOR REMAND The Veteran contends that he is entitled to an evaluation in excess of 10 percent disabling for his service-connected thoracic spine strain. The Veteran, through his prior representative, alleged that his October 19, 2016 VA back examination was inadequate. The Veteran was afforded two VA back examinations in October 2016. The Board finds that both examinations were inadequate under Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In the October 14, 2016 VA back examination, the examiner noted that the examination was not being conducted during a flare-up or following repetitive use over time. In considering whether pain, weakness, fatigability, or incoordination significantly limits functional ability during flare-ups or after repeated use over time, the examiner said that he was unable to say without mere speculation. He stated that it was not possible to express any additional loss in terms of range of motion (ROM) if he was not witness to the episodes. In the October 19, 2016 VA back examination, the examiner determined that pain did significantly limit functional ability with use over a period of time, but stated that she was unable to describe in terms of ROM because the Veteran was not examined immediately after repetitive use and was not able to replicate a loss in range of motion. However, both of these examiners provided insufficient reasoning for their respective determinations that estimated ROM could not be provided in light of the findings that examiners are qualified to translate lay and medical evidence regarding the duration, severity, and characteristics of repetitive motion and flare-ups to estimate additional loss of range of motion. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Additionally, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). During the March 2021 Board hearing, the Veteran alleged worsening of his spine, particularly with use. As such, an updated examination is also necessary in order to assess the current severity of his disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his thoracolumbar disability. The examiner must provide a full a description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, including any additional function impairment during flare-ups and/or repeated use. If an estimation is not possible, the examiner must indicate that he or she has considered all procurable data and explain why an estimation is not possible. 2. Then, readjudicate the issue on appeal. If the benefit sought is not granted, furnish a supplemental statement of the case and return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.